Kurtz v. Holbrook, No. 5019-VCL (Del. Ch. Dec. 1, 2009), read letter decision here.

This relatively short letter decision from the Delaware Court of Chancery addresses two motions to compel and explains why both were denied.

This is an expedited case that was filed on October 26, 2009 and seeks a preliminary injunction  that was scheduled to be heard on December 4, 2009. Because the Court indicated that it expected to issue a written opinion on the preliminary injunction application, this letter ruling only summarized briefly the factual background. The Court noted that it relied heavily on its discretion as provided in Rule 26(d)(1) to narrow discovery to ensure that it is “properly related to the issues presented in the litigation.”

Moreover the Court relied on that part of Rule 26 which allows the Court to limit discovery that is “unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.” Ct. Ch. R. 26(b)(1)(iii).

The Court noted what it referred to as a “bit of ‘tit-for-tat’ at work” because the pending motion was likely motivated by a prior motion to compel that the other party had filed. The Court also emphasized the standards in Rule 5(d)(3) which requires that in lieu of filing discovery requests and responses with the Court, counsel who serves the discovery is treated as its custodian–but when discovery requests and responses are to be used at trial or are necessary to a pretrial or post-trial motion, “the verbatim portions thereof considered pertinent by the parties shall be filed with the Court when relied upon.” The Court denied the motion to compel in this case due to the failure of the moving party to comply with that requirement in Rule 5(d)(3).