Fox v. Paine, et al., C.A. No. 3187-CC (Del. Ch. May 20, 2010), read letter decision here.   See prior case summary in this matter here. This ruling on a motion for a protective order features a reference to Hemingway’s classic book Old Man and The Sea.  See footnote 5.

Issues Addressed
Whether the requested documents were relevant to the counterclaims and whether those documents warranted protection via an amended confidentiality order.


This letter decision ruled on the motion for protective order of plaintiff. The decision of the Court was to deny the motion for a protective order regarding the contested document requests but the plaintiffs were permitted to amend the existing confidentiality order to designate certain documents as “highly confidential” for the eyes of the attorneys and their consultants only.

The Court recognized that the arguments on this discovery issue devolved into an argument on the merits of the cross-motions to enforce a settlement agreement, which was somewhat inevitable, but the court attempted to focus on the discovery dispute to the extent that it could be separated from a resolution of the merits.

The Court acknowledged that Rule 26(b) provides for a broad and far reaching scope of discovery that renders discoverable any information that “appears reasonably calculated to lead to the discovery of admissible evidence.” Thus, “absent injustice or privilege, the Rule instructs the Court to grant discovery liberally.” The Court used rather poetic language to explain its reasoning that even though the documents were discoverable, the counterclaims have likely “snagged a fish” that they “will never be able to bring to shore.” (citing Ernest Hemingway, The Old Man and the Sea (1952)).

Nonetheless, the Court recognized the sensitive nature of the documents requested, and therefore did not want to allow discovery to proceed “entirely unfettered.” Thus, the Chancellor granted the request of the plaintiffs to amend the confidentiality order which would restrict access to certain materials to the outside counsel of defendants and any outside experts or consultants who needed to play a role in the litigation.

The Court cautioned the plaintiffs however, not to abuse the confidentiality order and

 “to utilize it in such a way and with such prudence as to minimize – – or, dare I hope, obviate entirely – – the need for defendants to contest plaintiffs’ use of the ‘Highly Confidential’ label and the subsequent need for me to review any of these documents in camera.”