In Fleischman v. Huang, 2007 WL 2410386 (Del. Ch., Aug. 22, 2007), read opinion here, the Chancery Court, in quite forceful terms, refused to certify an interlocutory appeal of a discovery order, reasoning that the requirements of Supreme Court Rule 42 were not met. The Court further denied a motion to stay the order pending appeal pursuant to both Chancery Court Rule 62(d) and Supreme Court Rule 32(a). The Chancery Court earlier had granted a motion to compel certain limited discovery. Specifically, in this shareholder derivative action, the defendants filed a motion to dismiss for failure to make a pre-suit demand under Chancery Court Rule 23.1 — which is a basis to use Rule 12(b)(6) alleging the more generic "failure to make a claim". (See footnote 15). In their motion to dismiss, the defendants referred to a report of the Audit Committee–which plaintiff did not have and that was apparently not in existence when the complaint was filed.
In somewhat harsh terms, the court made it clear that it was not fair for defendants to base their motion on a report that they then refused to provide to plaintiffs. Moreover, the Court emphasized that it was not making new law, nor was it in conflict with other decisions, nor did it establish a substantive legal right. Nor was the court allowing wholesale discovery prior to deciding a Rule 23.1 motion. Rather, the court granted a limited procedural right of access to a document that the defendant expressly relied on in their motion to dismiss.
This case is an example, among other things, of how hard it is to appeal a discovery ruling.
UPDATE: Here is the Order of the Supreme Court affirming the Chancery Court (denying an interlocutory appeal).
ASIDE: Some of the arguments in this case made me think of a phrase I came across recently. I was reading the current issue of The Economist magazine at a family gathering yesterday (two of my brothers subscribe), and I read a phrase that I was eager to use. In referring to a certain company, but equally applicable to many lawyers and other people we all know, the lead article described this familiar situation: … cocksure assertions of its own holiness, as if they merited unquestioning trust.