Rohm and Haas Co. v. The Dow Chemical Co., (Del. Ch., Feb. 26, 2009), read opinion here. This is the latest in a series of pre-trial rulings on discovery disputes in this expedited matter. For prior rulings in this case highlighted on this blog, see here.
This letter decision involved three discovery issues. A Motion to Compel by Rohm and Haas (RH) and a cross-motion for protective order filed by Dow on the same day as their reply. On the same day as Dow filed their reply, they also filed their own Motion to Compel. RH sought the financial models that Dow showed to banks about the merger. Dow argued that the data was protected by both the attorney client privilege and the "business strategies privilege". The court denied the RH motion to compel, and conditionally denied the cross motion for protective order, and granted in part Dow’s motion to compel.
The court explained why Dow’s financial models were protected by the work product doctrine, citing Rule 26(b)(3). In footnote 3, the court cites to cases that explain why documents prepared at a lawyers’ direction in anticipation of litigation are presumptively protected by the doctrine absent a "substantial need" that the data cannot otherwise be obtained without "undue hardship".
Extensive confidentiality restrictions were imposed by the court in reply to the motion for protective order, including certifications under oath to submit to the jurisdiction of the court for enforcement purposes and also requiring certification to be filed with the court that after the litigation is over the materials will be returned or destroyed.
Dow’s motion to compel was granted to the extent that RH did not satisfy its burden to establish its claim of privilege or that the email sought was protected work product.