Whittington v. Dragon Group LLC, C.A. No. 2291-VCP (Del. Ch. July 20, 2012).

Issue Addressed: Whether the Court should open the post-trial record to allow supplemental evidence, in order to reconsider the Court’s prior decision.

Short Answer: The Court mostly refused to reopen the record but partially granted the motion for reconsideration for a very limited purpose.


This is the latest iteration in a long series of decisions which the Court described as an ongoing saga between the plaintiff and the rest of his family who were members of the defendant LLC.  The Court introduced its latest decision as follows:  “Litigation between these parties has dragged on in some form or other for more than a decade, and, regrettably, this Letter Opinion is unlikely to be the last chapter.”  Many prior decisions in both the Delaware Supreme Court and Court of Chancery in this case have been highlighted on these pages and are available here.  Reference is made to those prior decisions for the extensive factual background.


The Court observed that there is no express rule governing motions to open the evidentiary record after the close of evidence, but before the entry of a final judgment.  See footnote 15.  Instead, exercising its sound discretion, the Court can allow the introduction of additional evidence when doing so serves the interest of fairness and substantial justice.  The factors that the Delaware Courts consider in determining whether to grant a motion to reopen the record include:  (1) Whether the evidence has come to the moving party’s knowledge since the trial; (2) Whether the exercise of reasonable dilligence would have caused the moving party to discover the evidence for use at trial; (3) Whether the evidence is so material and relevant that it will likely change the outcome; (4) Whether the evidence is material and not merely cumulative; (5) Whether the moving party has made a timely motion; (6) Whether undue prejudice will inure to the non-moving party; (7) Considerations of judicial economy.

As part of its reasoning, the Court exhorted: “It is important that this litigation come to a final resolution soon.”