Willilam J. Brown v. Matterport, Inc. ( 2023 )

COURT OF CHANCERY
OF THE
STATE OF DELAWARE
LORI W. WILL LEONARD L. WILLIAMS JUSTICE CENTER
VICE CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734
June 5, 2023
Joseph L. Christensen, Esquire Robert L. Burns, Esquire
Christensen & Dougherty LLP Daniel E. Kaprow, Esquire
1000 N. West Street, Suite 1200 Kyle H. Lachmund, Esquire
Wilmington, DE 19801 Richards, Layton & Finger P.A.
920 North King Street
Wilmington, DE 19801
RE: William J. Brown v. Matterport, Inc., et al.
C.A. No. 2021-0595-LWW
Dear Counsel,
I write regarding the three discovery motions pending before me. The plaintiff
filed two motions to compel,1 and the defendants filed a motion for a protective order
and relief from the court’s scheduling order.2
Oral argument is unnecessary. I am familiar with the state of discovery in this
action, having ruled on several previously filed motions. After reviewing the present
motions and the dozens of accompanying exhibits, I conclude that the defendants’
1
Pl.’s Mot. to Compel Interrog. Resps. (Dkt. 217) (“Pl.’s MTC Interrogs.”); William J.
Brown’s Mot. to Compel (Dkt. 218) (“Pl.’s MTC Docs.”). Brown has also filed a motion
seeking sanctions for alleged spoliation, which will be addressed separately. See William
J. Brown’s Mot. to Compel, Mot. for Spoliation Sanctions, and Mot. for Adverse Inferences
(Dkt. 227).
2
Defs.’ Mot. for Protective Order and Relief from Scheduling Order (Dkt. 212) (“Defs.’
Mot. Protective Order”).
C.A. No. 2021-0595-LWW
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Page 2
motion should be granted and the plaintiff’s motions should be denied (with limited
exceptions described below).
I. BACKGROUND
Plaintiff William J. Brown brings this action against defendants
Matterport, Inc. (formerly known as Gores Holdings VI, Inc.), Matterport
Operating, LLC (“Legacy Matterport” and with Matterport, Inc., the “Matterport
Defendants”) and four former directors of Legacy Matterport (the “Director
Defendants”).3 The factual background of this bifurcated proceeding is outlined in
my Memorandum Opinion following the phase one trial.4 The five-day, phase two
trial scheduled for November will take up Brown’s breach of fiduciary duty claims,
among others. Generally speaking, Brown alleges that the defendants improperly
prevented him from selling his Matterport shares through lockup restrictions.
Phase two discovery began last fall. Earlier this year, I resolved several
motions that focused on discovery the defendants sought from Brown and certain
3
See Pl.’s Verified Third Am. Compl. (Dkt. 140) (“Compl.”).
4
Post-Trial Mem. Op. Regarding Count I (Dkt. 122); Brown v. Matterport, Inc., 2022 WL
89568, at *2 (Del. Ch. Jan. 10, 2022), aff’d, 282 A.3d 1053 (Del. 2022) (TABLE).
C.A. No. 2021-0595-LWW
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Page 3
non-parties.5 Now, the parties have filed motions concerning the discovery Brown
served on the defendants.
II. ANALYSIS
Court of Chancery Rule 26(b) provides that “[p]arties may obtain discovery
regarding any non-privileged matter that is relevant to any party’s claim or defense
and proportional to the needs of the case.”6 Although the scope of discovery is
broad, it is not limitless. This court “may exercise its sound discretion in delineating
the appropriate scope of discovery.”7
These principles guide my review of the motions to compel filed by Brown:
one concerning interrogatory responses and the other concerning document
discovery. The former seeks an order requiring various defendants to respond to
certain interrogatories “in full.”8 The latter seeks an order requiring the defendants
to apply certain search terms and collect data from two sources.9
5
See Dkts. 194-97; Tr. of Feb. 10, 2023 Oral Arg. and Rulings (Dkt. 202) at 45-56 (granting
defendants’ motion to compel, denying Brown’s motion to quash, and denying Brown’s
motion in limine).
6
Ct. Ch. R. 26(b)(1).
7
In re Tyson Foods, Inc., 2007 WL 2685011, at *3 (Del. Ch. Sept. 11, 2007).
8
Proposed Order Granting Pl.’s Mot. to Compel Interrogs. (Dkt. 217) ¶¶ 2-8 (“Proposed
Order”).
9
Pl.’s MTC Docs. 13.
C.A. No. 2021-0595-LWW
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Separately, the defendants filed a motion for a protective order and relief from
the scheduling order entered in this case.10 Brown insists that the defendants’
witnesses sit for depositions now—despite escalating discovery disputes—and
reserves the right to recall those witnesses later. The defendants have not opposed
Brown’s requests for depositions. They ask that the court preclude the depositions
from going forward until written discovery is complete. To accommodate this, the
defendants request a continuation of the trial date and all interim deadlines.11
I address each motion in turn.
A. Interrogatories
In his Motion to Compel Interrogatory Responses, Brown contends that the
defendants’ interrogatory responses are inadequate, incomplete, or fail to comply
with Court of Chancery Rule 33(d).12 The parties have attempted to address the 18
interrogatory responses at issue by category. For each grouping, I agree with the
defendants that their responses are appropriate.
10
Defs.’ Mot. Protective Order ¶ 5.
11
Under the operative scheduling order, fact discovery ends on June 15, 2023 and trial
begins on November 13, 2023. Dkt. 175.
12
Proposed Order ¶¶ 2-8; see generally Pl.’s MTC Interrogs.
C.A. No. 2021-0595-LWW
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First, Brown argues that the defendants failed to provide detailed descriptions
of oral communications.13 For example, Interrogatory 40 asks the Matterport
Defendants to “describe communications . . . relating to Brown’s shares,” and
Interrogatory 46 asks “the Director Defendants to identify all reports, information,
statements, and records presented to Matterport by any officer, director or advisor,
as the Director Defendants referenced in their Fourth Affirmative Defense.” 14 In
response, the defendants identified certain communications between Matterport and
its transfer agent or advice relied upon by the Director Defendants.15 The defendants
did not elaborate on the substance of the communications or the advice.
Additionally, Brown seeks supplemental responses to contention
interrogatories about disputed legal issues,16 and the redefinition of a term in Legacy
Matterport’s charter.17 In Interrogatories 36 to 39, for example, Brown asks the
13
Pl.’s MTC Interrogs. ¶¶ 2-4.
14
Id. ¶ 2.
15
Id. ¶¶ 2-4; Defs.’ Opp’n to Pl.’s Mot. to Compel Interrog. Resps. and Mot. to Compel
and Reply in Further Supp. of Defs.’ Mot. for Protective Order and Relief from Scheduling
Order (“Defs.’ Opp’n to Pl.’s MTCs”) ¶¶ 11-14.
16
Pl.’s MTC Interrogs. ¶¶ 5-9; Defs.’ Opp’n to Pl.’s MTCs ¶¶ 15-20. This category
includes Interrogatories 36-39, 54, 64-67, and 74 to the Matterport Defendants, and
Interrogatory 52 to the Director Defendants.
17
Pl.’s MTC Interrogs. ¶ 6; Defs.’ Opp’n to Pl.’s MTCs ¶¶ 21-23. This category includes
Interrogatory 43 to the Matterport Defendants and Interrogatory 34 to the Director
Defendants.
C.A. No. 2021-0595-LWW
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Matterport Defendants for information about Matterport’s contention that it was not
required to register the transfer of Brown’s Matterport shares and its contention
about alleged liability to Brown due to the delay in registering the transfer.18 Brown
avers that the defendants have “refused to provide responses.”19 But the Matterport
Defendants served a response explaining the basis for their contention that
Matterport believed, as of November 2021, Brown’s shares were subject to transfer
restrictions.20 The Matterport Defendants also stated their position on Brown’s
claimed damages.21
18
Pl.’s MTC Interrogs. ¶ 5.
19
Id.
20
The Matterport Defendants responded: “Subject to and without waiver of the foregoing
objections . . . as of November 2021, Defendants understood Plaintiff’s Matterport shares
to be Lockup Shares subject to transfer restrictions set forth in Section 7.10 of the A&R
Bylaws, which was the subject of ongoing litigation before the Court prior to the Court’s
January 10, 2022 Memorandum Opinion ruling that ‘Brown’s Matterport shares are not
Lockup Shares under Section 7.10 of the A&R Bylaws’ and affirmance on July 27, 2022
of that ruling on appeal. Matterport further states that Brown altered his letters of
transmittal that he submitted for the 5,713,441 Matterport shares in question.” Id. Ex. D at
15-21.
21
In addition to restating their response reproduced supra note 20, the Matterport
Defendants stated: “[I]f Brown had not been subject to a lockup past its expiration, Brown
would have obtained and sold his Matterport shares at his earliest opportunity after the de-
SPAC transaction closed, and much earlier than November 2021. The trading price of
Matterport’s Class A stock on the date that Brown would have sold his shares (or a
reasonable period thereafter) may be less than the weighted average sales price of
approximately $14.09 per share that Brown pleads he received from his share sales in
January 2022. The date that Brown would have sold his shares, and a reasonable period
for Brown to have sold his shares, are subjects of discovery in this case.”). Id. Ex. D at
19-21.
C.A. No. 2021-0595-LWW
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The defendants also sufficiently responded to Brown’s interrogatories
concerning the redefinition of “Liquidation Event” in Legacy Matterport’s charter.
Brown wants to know “why the amendment was done including the intended effect
of the amendment on other agreements that incorporated, referenced or were
triggered by a Liquidation Event as defined in the charter.”22 The defendants told
him.23
In my view, the defendants have satisfied their obligation to respond to the
relevant interrogatories. They disclosed sources of information and identified key
facts that will make document discovery and depositions more fruitful. Beyond that,
the sort of narrative accounts Brown seeks are more appropriately obtained through
depositions.24 To order the defendants to provide lengthy written descriptions of
22
Id. ¶ 6 (emphasis omitted).
23
Id. Ex. D at 25-26 (Matterport “respond[ing] that the definition of the term ‘Liquidation
Event’ in Legacy Matterport’s charter was amended prior to the announcement or closing
of the Business Combination Transaction because Matterport determined in consultation
with its advisors that such an amendment was appropriate to eliminate any uncertainty
concerning whether the Business Combination Transaction constituted a Liquidation Event
within the definition of that term”); id. Ex. E at 15-16 (Director Defendant responding the
same). Brown claims the defendants’ responses were “evasive . . . [because they] simply
restate[] the act of amending.” Pl. William Brown’s Reply in Supp. of Mots. to Compel
(Dkt. 239) ¶ 24. Brown wants to know “why” the amendment was made, as well as how
the redefinition affected other agreements and corporate documents. Id. He is entitled to
ask these questions during depositions.
24
See Tyson Foods, 2007 WL 2685011, at *3 (denying motion to compel responses to
interrogatories requesting the identification of communications, agreements, and payments
“because the information sought” was “more appropriately obtained through deposition”);
C.A. No. 2021-0595-LWW
June 5, 2023
Page 8
information Brown can effectively obtain in other forms would create needless
make-work.25
Next, Brown challenges the defendants’ responses to interrogatories about
their denials in their Answer to the operative Complaint.26 Brown asserts that the
Matterport Defendants must provide the “factual basis” for their denials. 27 But the
corresponding paragraphs of Brown’s Complaint contain legal conclusions to which
JPMorgan Chase & Co. v. Am. Century Cos., 2013 WL 1668393, at *7 (Del. Ch. Apr. 18,
2013) (explaining that answers to contention interrogatories “may be more efficiently
addressed by the forthcoming document production and deposition testimony”); Lorch v.
Dyson-Kissner-Moran, 1995 WL 347784, at *2 (Del. Ch. May 31, 1995) (“My experience
and my understanding of the course of litigation suggests that interrogatories can be drafted
in such a way as to disclose the sources of information and rudimentary basic facts that
support the allegations in a complaint and then flesh out the situation by going to the actual
source by way of deposition.”).
25
The fact that the Rules of the Court of Chancery do not cap the number of depositions a
party may serve is not an invitation to weaponize written discovery. See In re Pennzoil
Co. S’holders Litig. Cons., 1997 WL 770663, at *2 (Del. Ch. Oct. 27, 1997) (“[T]he
discovery process in the Court of Chancery should be carefully supervised to avoid
wasteful duplication and to avoid the risk that discovery will become a strategic weapon,
rather than a legitimate method to flesh out issues for the impending trial.”); see also In re
MultiPlan Corp. S’holders Litig., 2022 WL 7351803, at *2 (Del. Ch. Oct. 12, 2022)
(questioning the propriety of voluminous depositions seeking substantive narrative
responses).
26
Pl.’s MTC Interrogs. ¶¶ 7-9; Defs.’ Opp’n to Pl.’s MTCs ¶¶ 24-26. This category
includes Interrogatories 50 and 51 to the Matterport Defendants.
27
Pl.’s MTC Interrogs. ¶ 8.
C.A. No. 2021-0595-LWW
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Page 9
no response was required.28 To the extent that Brown seeks substantive information,
it was provided in response to several other interrogatories.29
Brown further avers that the Director Defendants have waived privilege by
stating in response to Interrogatory 45 that they acted “in good faith and in reliance
on advice provided by Matterport’s advisors.”30 In Brown’s view, the Director
Defendants must now disclose this advice because they raised an advice of counsel
defense. I disagree. “A party places her attorney-client communications at issue by
injecting (1) ‘the privileged communications themselves into the litigation,’ or (2)
‘an issue into the litigation, the truthful resolution of which requires an examination
of confidential communications.’”31 The Director Defendants’ bare reference to
relying on “advice provided by Matterport’s advisors” does neither.32
28
Compl. ¶¶ 98-99 (making claims under 6 Del. C. § 8-401(a)); see Diamond State Tel.
Co. v. Vetter, 1978 WL 22027, at *2 (Del. Ch. Apr. 27, 1978) (explaining that a party need
not answer interrogatories that “seek to have the defendants disclose in advance the facts
on which they will rely to negate the legal theories which plaintiff has not yet established”).
29
See Pl.’s MTC Interrogs. Ex. F at 6.
30
Id. ¶ 10.
31
Drachman v. BioDelivery Scis. Int’l, Inc., 2021 WL 3779539, at *7 (Del. Ch. Aug. 25,
2021) (quoting Alaska Elec. Pension Fund v. Brown, 988 A.2d 412, 419 (Del. 2010)).
32
E.g., In re William Lyon Homes S’holder Litig., 2008 WL 3522437, at *3-4 (Del. Ch.
Aug. 8, 2008) (denying a movant’s motion to compel disclosure of privileged
communications and ruling that privilege was not waived and privileged communications
were not placed “at issue”).
C.A. No. 2021-0595-LWW
June 5, 2023
Page 10
Finally, Brown complains that the defendants have improperly relied on Rule
33(d).33 This rule allows a party responding to an interrogatory to “specify the
records from which the answer may be derived or ascertained” where “the burden of
deriving or ascertaining the answer is substantially the same for the party serving the
interrogatory as for the party served.”34 Certain of the defendants’ responses cite to
the rule without identifying documents. But the defendants have told Brown that
they will identify specific documents upon the completion of document discovery.35
So long as the defendants follow through, I see no dispute requiring resolution.
B. Document Production
Brown’s other Motion to Compel seeks an order requiring the defendants to
run 16 disputed search terms, and to collect and review documents from Matterport’s
Google Drive along with Google Chat messages from Matterport custodians.36 This
motion is denied, with two possible exceptions.
Regarding search terms, the motion is largely denied. The defendants have
already agreed to 188 search terms.37 Brown proposed 19 more. After meet and
33
Pl.’s MTC Interrogs. ¶ 11.
34
Ct. Ch. R. 33(d).
35
Defs.’ Opp’n to Pl.’s MTCs ¶ 9; Pl.’s MTC Interrogs. Ex. F at 2-3.
36
Pl.’s MTC Docs. 13.
37
Id.; id. Ex. H at 4-10.
C.A. No. 2021-0595-LWW
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confers, as well as attempted modifications by the defendants, 16 of these 19 terms
remain in dispute. The defendants aver that the terms are facially overbroad and not
reasonably tailored to capture responsive information.
After reviewing Brown’s proposed search terms, the defendants’
modifications (to 13 of the 16 terms), and the resulting hit counts, it is apparent that
Brown’s initial proposals are unjustifiable.38 One proposed term essentially captures
any email sent or received by a Director Defendant that includes “sell,” “sale,”
“share,” “transfer,” “lock,” or “7.10.”39 This would lead to 169,920 incremental
document hits (with families) for review. The defendants’ random sampling of these
documents suggests that about 1% would be responsive.40
Another disputed term would capture any document containing “Outlook”
plus “share,” “stock,” or “merger.”41 This search term has 96,254 incremental
38
If Brown does not understand whether the search term hit reports reflected an incremental
count between his proposed terms and the defendants’ revisions, he should request a meet
and confer.
39
The full term is: “(RJ OR Pittman OR Peter OR Hebert OR Jason OR Krikorian OR
Mike OR Michael OR Gustafson OR Lux OR DCM) w/50 (sell* OR lock* OR sale OR
share* OR 7.10 OR transfer).” Id. Ex. H at 6 n.4.
40
Id. Ex. H at Ex. B.
41
The full term is: “(Hangout OR Zoom OR Teams OR ‘meeting ID’ OR ‘dial in’ OR
‘conference room’ OR ‘one tap’ OR Outlook OR ‘Event Details’) AND (Goldfinger OR
Maker OR Share* OR Stock* OR lock* OR restrict* OR ‘business combination’ OR SPAC
OR ‘De SPAC’ OR DESPAC OR De-SPAC OR merger OR Brown OR PIPE OR Gores
OR GHVI OR GHV).” Id. Ex. H at 6 n.5.
C.A. No. 2021-0595-LWW
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document hits (with families), and 0 out of the 87 documents sampled were
responsive.42 Requiring the defendants to apply these search terms would be unduly
burdensome and disproportionate to the needs of the case, given the low likelihood
that the terms would identify any meaningful amount of non-duplicative, responsive
information.43
Brown has suggested limiters (globally and modifications to four terms).44
Because the defendants have not provided a hit report for these modified terms, I
cannot assess whether they would remain disproportionately overbroad. I ask that
the defendants run the revisions Brown proposed and meet and confer with Brown
about the results. Should the hit reports and the defendants’ random sampling
continue to indicate that these terms would require reviewing a significant volume
of unresponsive documents, I will be strongly disinclined to require the defendants
to apply them. The parties shall file a letter providing a joint status report, attaching
the hit report, after their meet and confer.
42
Id. Ex. H at Ex. B.
43
E.g., Grunstein v. Silva, 2009 WL 4698541, at *20 (Del. Ch. Dec. 8, 2009) (stating that
the court may “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’”).
44
Pl.’s MTC Docs. Ex. J at 6.
C.A. No. 2021-0595-LWW
June 5, 2023
Page 13
Regarding Google Chat, the motion is denied. The defendants have
represented that none of their document custodians used Google Chat for potentially
responsive communications during the relevant period.45 Each document custodian
was interviewed and asked to identify potential data sources.46 I have no reason to
suspect that the document custodians were not forthcoming.47
Regarding Google Drive, the motion is denied—with one possible exception.
Matterport uses Google Drive for companywide document storage. The defendants
identified specific Google Drive folders to collect after conducting custodian
interviews. In my experience, share drive folders are typically identified in this
manner. But Brown contends that it constitutes impermissible self-selection.
Brown made several proposals to broaden Matterport’s collection from
Google Drive. Specifically, he suggested that Matterport: (1) provide Brown with a
45
Defs.’ Opp’n to Pl.’s MTCs ¶¶ 44-45 & n.16.
46
See Pl.’s MTC Docs. Ex. H at 2.
47
Brown’s insistence that Google Chat communications be produced stems from a lawsuit
in the Northern District of California where Matterport admitted that it had failed to
preserve Google Chat data for seven former employees. Stemmelin v. Matterport, Inc.,
2022 WL 818654, at *1 (N.D. Cal. Mar. 17, 2022); see Pl.’s MTC Docs. Ex. N at 4-5.
None of those seven former Matterport employees in the Northern District of California
case are document custodians in this action. The suggestion that the document custodians
here used Google Chat during the relevant period is speculative. If, however, Brown learns
during depositions or otherwise that Google Chat was used, he may revisit this issue with
the court.
C.A. No. 2021-0595-LWW
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map of the folder structure of Matterport’s Google Drive so that he could identify
additional folders to collect; (2) apply search terms across Matterport’s Google
Drive workspace through a desktop version of Google Drive to identify certain
folders; or (3) apply search terms across Matterport’s full Google Drive. The
defendants have told Brown that each option is infeasible or unduly burdensome.
The folder structure map does not exist, and I decline to order Matterport to
attempt to create it. Matterport’s Google Drive folders lack a folder or directory
listing or a structure that can be displayed in the user interface. Matterport would
need to manually generate a folder structure map.48 Requiring Matterport—a public
company—to apply search terms across its entire Google Drive is even more
problematic. Running the terms across a desktop version of Google Drive to identify
folders containing potentially responsive documents seems no different in practice.
Brown argues that the relief he seeks is necessary because a custodian might
have forgotten about a folder containing responsive materials. Discovery is
necessarily imperfect and involves the risk of human error. That does not entitle a
party to hunt through a public company’s vast share drive for possible gaps. Should
48
See Pl.’s MTC Docs. Ex. H at 2-3; Defs.’ Opp’n to Pl.’s MTCs ¶ 40.
C.A. No. 2021-0595-LWW
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Brown learn that relevant share drive folders were overlooked, he may seek relief
from the court.49
Brown proposed a fourth option in his papers: that the defendants collect
documents from and run search terms across folders that Matterport document
custodians authored, edited, uploaded, or had access to. This, too, is unwarranted.
Matterport’s document custodians include its CEO and CFO, who have broad
access. That said, it might be appropriate to require Matterport to collect documents
on Google Drive that all or a subset of its custodians authored, edited, or uploaded
during the relevant time period. This was not the subject of the parties’ meet and
confer discussions and I lack information about its feasibility. Counsel are directed
to confer about this possibility and report back on the outcome of that discussion in
the status report letter I requested above.50
C. Protective Order and Scheduling
Finally, the defendants’ Motion for Protective Order and Relief from
Scheduling Order seeks to prevent Brown from deposing witnesses now since he
49
Brown identified a “Brown litigation folder” that might not have been reviewed. Pl.’s
MTC Docs. ¶ 16. To the extent they have not done so, the defendants shall review the
documents in that folder to determine whether it contains responsive, non-privileged
information.
50
See supra at p. 12.
C.A. No. 2021-0595-LWW
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maintains he may recall them after remaining written discovery issues are resolved.51
Court of Chancery Rule 26(c) permits the court to issue a protective order “for good
cause shown” to shield the movant from “annoyance, embarrassment, oppression, or
undue burden or expense.”52 This court has broad discretion to “dictate the sequence
of discovery.”53 “This court also ‘has discretion to resolve scheduling issues and to
control its own docket.’”54
The defendants have shown good cause for a protective order. Written and
document discovery are ongoing. Brown is continuing to serve new discovery—
including 100 interrogatories and 39 document requests served on May 15.55 To
require the defendants’ witnesses to sit for depositions now, and perhaps again later
after written discovery is complete, risks inefficiency and unnecessary burdens.
“[R]epeat depositions are disfavored” for a reason.56 Preparation for and
participation in depositions is disruptive to litigants, stressful for witnesses, and time
51
Defs.’ Mot. Protective Order ¶ 26.
52
Ct. Ch. R. 26(c).
53
Sokol Hldgs., Inc. v. Dorsey & Whitney, LLC, 2009 WL 2501542, at *9 n.45 (Del. Ch.
Aug. 5, 2009); see Ct. Ch. R. 26(d).
54
In re Baker Hughes Inc. Merger Litig., 2022 WL 2693031, at *3 (Del. Ch. July 11, 2022)
(quoting Coleman v. PricewaterhouseCoopers, LLC, 902 A.2d 1102, 1107 (Del. 2006)).
55
See Dkt. 233; Defs.’ Opp’n to Pl.’s MTCs ¶¶ 4, 47.
56
Siegman v. Columbia Pictures Entm’t, Inc., 1993 WL 133068, at *2 (Del. Ch. Apr. 14,
1993).
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consuming and costly for all involved. I see no good reason to require the
defendants’ witnesses sit for depositions twice in this non-expedited case. Brown
may, of course, choose to press ahead with depositions before written discovery is
complete. But doing so will be at his peril.57
Although I will grant a protective order, I decline to continue the trial. The
only amendment presently needed to the scheduling order concerns the fact
discovery deadline.58 There seems to be some agreement that the new deadline
should be July 31. Should the parties believe that other changes are necessary, such
as to the expert discovery or expert report deadlines, the parties shall promptly meet
and confer about a revised schedule and present any proposed amended schedules to
the court.
III. CONCLUSION
Brown’s motion to compel interrogatory responses is denied.59 Brown’s
motion to compel document production is denied, except that the defendants shall
run his proposed modifications to certain disputed search terms and the parties shall
57
That is, Brown will not be permitted to re-depose witnesses absent a showing of good
cause that he has not presently made. If he insists on deposing the defendants’ witnesses
before written discovery has concluded, he risks incomplete testimony.
58
Under the current scheduling order, fact discovery is to end on June 15, 2023. Dkt. 175.
59
Brown’s request for fees incurred in bringing the motion is likewise denied.
C.A. No. 2021-0595-LWW
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meet and confer about the possibility of collecting certain documents from Google
Drive as set forth above.60 The parties shall file a status report letter, as requested
above, after their meet and confer.61 The defendants’ motion for a protective order
is granted, and the scheduling order is hereby amended to provide that the fact
discovery deadline is July 31, 2023. Any further changes to the scheduling order
shall be presented in a revised proposed order within five days. If the parties cannot
agree on a schedule, they may each submit a proposed scheduling order
accompanied by a letter outlining the areas of disagreement.
Any remaining discovery disputes should be brought to my attention
promptly—after a meaningful effort by counsel to reach resolution. Ideally, disputes
should be presented in a single motion rather than through serial, overlapping
motions. Fact discovery must be brought to a close.
To the extent necessary for the foregoing to take effect, IT IS SO ORDERED.
/s/ Lori W. Will
Vice Chancellor
60
Because Brown’s motion is largely denied, his request for fees incurred in bringing the
motion is denied. See Ct. Ch. R. 37(a)(4)(C); see Summit Fire & Sec. LLC v. Kolias, 2022
WL 3572827, at *4 (Del. Ch. Aug. 19, 2022) (denying a request for fees where the movant
“prevailed on its motion only in small part”).
61
See supra at pp. 12, 15.