Grunstein v. Silva, C.A. No. 3932-VCN (Del. Ch. July 2, 2012).
Issue Addressed: Whether opposing counsel must certify their agreement to restricted access before viewing documents entitled to a Highly Confidential designation.
Short Answer: The Court required a certification to be signed by attorneys at Dechert LLP before they would be given access to produced documents.
The extensive background facts in this long-running dispute are described in the multiple prior Delaware decisions in this case that have been highlighted on these pages and are available here.
In reply to discovery requests Defendants were given pleadings and court filings from an action pending in Maryland, as well as Discovery Documents which had been produced in the Maryland case, and placed a “Highly Confidential” designation on all the Maryland Documents (the Discovery Documents along with the Court Documents). Because of the designation, only four lawyers at Dechert LLP (a law firm representing the Defendants) were allowed to look at the documents.
Defendants sought to vacate the Highly Confidential designation.
Defendants asked to allow additional attorneys to review the documents, however Plaintiff refused unless those attorneys certify that “…neither …[they] nor any of their current or former clients are involved in healthcare or financing and that they won’t represent clients in those areas [during the pendency of this case].”
The Court Documents which were created for the Maryland action were designated as Highly Confidential pursuant to an order entered by the Circuit Court of Maryland. The Court of Chancery found the circumstances not compelling enough to de-designate an order from another court of another state, although it was not bound by the other court’s ruling. While the Defendants primarily wanted access to an affidavit, the Defendants could have received the same facts through a deposition.
The Court ordered the producing party to review all of the Discovery Documents and determine in good faith whether they deserve a Highly Confidential designation. The Defendants may also request a de-designation of any documents they believe relevant and not entitled to the Highly Confidential treatment.
The Court held that the Dechert attorneys may review the Maryland Documents if they certify that during the pendency of this case they will neither be involved in the related New York Litigation nor represent any client in a matter involving the purchase or sale (including financing) of any nursing home or adult assisted-living center.