Kasten v. Doral Dental USA, LLC, 733 N.W.2d 300 (Wisc. 2007), read opinion here. This decision of the Wisconsin Supreme Court dealt with a demand for books and records from an LLC. Although this may seem outside the scope of this blog on Delaware business litigation, it is relevant to the focus of this site because the decision includes a survey of the history of the parts of LLC statutes across the country that deal with demands for books and records, and the interface of those provisions with the terms of an operating agreement providing for demand of books and records. The court’s survey of the LLC statutes across the country includes reliance in part on the leading treatise in the area by Professor Larry Ribstein and Robert R. Keatinge. Due to the relative paucity of cases on this specific topic (compared with the analog for corporations), this case is a useful reference.
Many cases on this blog address the demand for books and records of a corporation under DGCL 220, but the analysis for demand from an LLC is different for several reasons. For example, in a case involving a demand for records from an LLC, the focus is usually on interpreting the terms of the Operating Agreement provisions that touch on the topic, as opposed to the statute. The statutory provisions in the Delaware LLC Act about what books and records an LLC member are entitled to, are parsimonious in this regard.
Wisconsin’s Hight Court determined that the provisions of the LLC Operating Agreement allowing for inspection of "company documents and records" were much broader than what was required under the LLC statute pursuant to the term "record" used in the statute. Thus, the Wisconsin Supreme Court reversed the lower court, and determined that the member was entitled to e-mails and drafts of documents even though such data was broader than the definition of "records" in the LLC statute. The court declined to decide, however, whether the member was entitled to other electronic data that was stored elsewhere, off-premises, as that issue was not before it.