In re Kent County Adequate Public Facilities Ordinances Litigation Consolidated, (Del. Ch., April 18, 2008), read opinion here.
The purpose of this post is to provide excerpts on discovery issues listed in the title above that every business litigator will encounter from time to time, and in those instances this decision will be a useful reference.
Here are a few practical quotes from this Chancery Court opinion:
An inadvertent disclosure of privileged communications will not necessarily
operate to waive the attorney-client privilege.28 In order to determine whether the
inadvertently disclosed documents have lost their privileged status, the Court must
consider the following factors: (1) the reasonableness of the precautions taken to
prevent inadvertent disclosure; (2) the time taken to rectify the error; (3) the scope
of discovery and extent of disclosure; and (4) the overall fairness, judged against
the care or negligence with which the privilege is guarded. 29
The Court is satisfied that Respondents have not waived the attorney-client
privilege with respect to the “inadvertently disclosed” documents.30 First, it
appears that Respondents instituted reasonable precautions to prevent the
disclosure of privileged materials—e.g., their outside litigation counsel reviewed
the documents prior to producing them to Petitioners. Given the volume of
discovery in this case, however, it is not inconceivable that Respondents’ counsel,
even with a diligent review of the documents, could inadvertently have produced
privileged materials to Petitioners.
28. WOLFE & PITTENGER, supra note 16, § 7-2[c], at 7-26.
29. Id. at 7-27; Monsanto Co. v. Aetna Cas. & Sur. Co., 1994 WL 315238, at *6 (Del. Super.
May 31, 1994) (quoting Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y. 1985))
The following footnote provides excellent insight into why most courts abhor discovery disputes and why they should be avoided if possible. Although in some cases they are unavoidable, I tell younger associates in our firm that if the lawyer(s) on the other side are being childish and boorish, especially if they are out-of-town lawyers, "somebody needs to be the adult" and/or "somebody needs to be the Delaware lawyer" and if it is not a matter that will determine the outcome of the case or is a minor issue, it is more productive to focus on more substantive matters, and swallow one’s pride, and pick a battle on a more outcome-determinative issue.
The Court’s admonition to the parties in Amirsaleh v. Bd. of Trade of City of New York, Inc.,
2008 WL 241616 (Del. Ch. Jan. 17, 2008), regarding the conduct of discovery has considerable force in this case as well, particularly in light of the gratuitous barbed comments and pointed tone in the parties’ recent series of filings (and other communications between counsel submitted into evidence in connection with those filings):
The Rules of this Court are primarily based on the Federal Rules of Civil
Procedure, which were originally crafted in their modern form in 1938. The
framers of the federal rules intended the discovery process to be managed with
little judicial oversight by the parties, and intended that the process be cooperative
and self-regulating. Today, with far more complex cases and discovery processes
that are extraordinarily voluminous and complicated, cooperation and
communication among the parties and their counsel are even more important.
Such communication and cooperation were clearly absent in this case.
Defendants protest at length in their answering brief about [plaintiff’s counsel’s]
failure to discuss this discovery dispute. Such behavior is inappropriate. The
Court does not relish the opportunity to resolve discovery spats that likely could
have been resolved by the parties on their own. If defendants did not understand
[the Court’s prior discovery decision], they should have asked for clarification. If
plaintiff took issue with defendants’ response to discovery request, he should have
reached out to defense counsel to express his concerns. Plaintiff’s counsel should
certainly not refuse to articulate such concerns when explicitly asked to do so by
the other side. Both sides are reminded to treat one another with respect and
civility throughout the discovery process.
Id. at *3 (emphasis added) (citations omitted).
The Court, of course, does not intend to discourage the parties (or litigants generally) from
bringing to the Court’s attention legitimate discovery disputes, which, undoubtedly, will arise from time to time. Moreover, the Court acknowledges that counsel for both parties did, in fact, attempt to communicate regarding the present discovery issues, at least in the latter part of February and in early March. The lack of communication to resolve this dispute following the Court’s March 19 letter opinion, however, is inexplicable. The more acute problem in this case would seem to be the parties’ tendency to adopt intractable positions instead of seeking out pragmatic solutions to move the discovery process along.