Continental Casualty Company v. BorgWarner Inc. ( 2016 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CONTINENTAL CASUALTY
COMPANY, et al.,
Plaintiffs,
C.A. No. N15M-05-009
V;@
BoRGWARNER lNc., er az.,
\J\_/\J§/\Jé§/\y§/§/
Defendants.
Subrnitted: April 15``, 2016
Decided: July 14, 2016
On Motion of BorgWarner Inc. and BorgWarner Morse TEC LLC
F or Reconsideration of Cornrnissioner’s Order Granting, in Part, and
Denying, in Part, Their Motion to Compel. DENIED.
,H,QPlNION.
Michael B. Rush, Esquire, Jennifer C. Wasson, Esquire, Potter, Anderson &
Corroon LLP, Wilmington, Delaware, Attorneys for Defendants BorgWarner Inc.
and BorgWarner Morse TEC Inc.
Sean M. Brennecke, Esquire, Richard M. Beck, Esquire, Klehr, Harrison, Harvey,
Branzburg LLP, Wilrnington, Delaware, Attorneys for Intervenor First State
Insurance Company.
Thaddeus J. ``Weaver, Esquire, Dilworth Paxson, LLP, Wilrnington, Delaware,
Attorney for I'ntervenor The North River Insurance Cornpany.
SCOTT, J.
Before the Court is a Motion for Reconsideration of Commissioner’s Order
filed by Defevndants, BorgWarner Inc. and BorgWarner Morse TEC LLC
(collectively, "BorgWarner"). BorgWarner seeks reconsideration of an order
issued on March l5, 2016, by Commissioner Manning granting, in part,
BorgWarner’s motion to compel the Owens Corning/Fibreboard Asbestos Personal
Injury Trust (the "Trust") , a Delaware trust, to comply with a subpoena served on
May 6, 2015 and denying, in part, lntervenors’, North River lnsurance Company
("North River") and First State lnsurance Company ("First State") (collectively,
"Intervenors"), motion to quash BorgWarner’s subpoena. The Court has reviewed
and considered the Parties’ written submissions, in light of the Commissioner’s
order, the transcript of the hearing before the Commissioner, and the associated
record. Because BorgWarner has failed to show on the record that the
Commissioner’s order is contrary to law, this Court may not reconsider this non
case-dispositive matter, de novo or at all. Accordingly, BorgWarner’s Motion for
Reconsideration of the Commissioner’s Order is DENIED-,.-:
In 1985, numerous insurers, including lntervenors, entered into a settlement
agreement with Owens Corning Fiberglas Corp. ("Owens Corning") to facilitate
the resolution of insurance coverage disputes between the parties thereto, as well as
voluntarily disclose any information related to the arbitration; and (ii) there is no
national policy favoring arbitration.M Even if the facts and reasoning in Gotham
were completely analogous to the case sub jua'ice, which BorgWarner has failed to
show, decisions from the Seventh Circuit are not binding on this Court. Therefore,
BorgWarner’s argument, even under ideal circumstances, lacks merit.
Second, and in similar fashion, BorgWamer contends that the
Commissioner’s failure to follow the decision of the District of Delaware
Bankruptcy Court to compel disclosure of certain arbitration decisions and briefs
pursuant to Bankruptcy Rule 2004 in In re Armstrong Worla' Industries, Inc. was
contrary to law.l$ In Armstrong, the bankruptcy court applied Federal Rule of
Civil Procedure 26(0) in the context of Rule 2004, which permits a broad
examination of the debtor in Chapter ll bankruptcy cases, in finding that the
insurers failed to meet their burden of demonstrating a particular need for
protection.m The Armstrong court rejected the insurers’ argument that the nature
of ADR requires that its processes be kept confidential by distinguishing the one
case relied on by the insurers for that purpose.w Accordingly, the bankruptcy court
ordered disclosure, but limited it to an in camera review by the asbestos claimant
-._'
"* G@¢ham, 580 F.zd ar 665-66.
15 No. 00-04471-KG (Bankr. D. Del. Sept. 8, 2003).
16 In re Armstrong World Indus., lnc., No. 00-0447l-KG, Hearing Transcript 66:16-68:18
(Bankr. D. Del. Sept. 4, 2003).
"1¢1. ar6s;17-69;10.
_ _
lO
representatives for purposes of evaluating the insurance asset pursuant to Rule
2004.18 Again, even if the facts and reasoning in Armstrong were completely
analogous to the case sub jua'ice, which BorgWarner has failed to show, decisions
from the District of Delaware Bankruptcy Court are not binding on this Court.lg
Therefore, BorgWarner’s argument, even under ideal circumstances, lacks merit.
Third, BorgWamer argues that, because numerous other courts have
permitted discovery of materials subject to various confidentiality agreements, this
Court should have. The two potentially binding cases cited from this Court
involved the discovery of confidential settlement agreements to non-settling parties
and, thus, are irrelevant to the issue of the confidentiality of and Delaware public
policy favoring arbitration. The remaining cases are all federal court cases
involving the discovery of materials subject to various confidentiality agreements
pursuant to the Federal Rules of Civil Procedure and, thus, are also irrelevant to the
issues sub judz``ce.
Lastly, BorgWarner makes a last ditch attempt to undermine the Intervenors’
arguments by contending that First State and other insurers have taken
contradictory positions on confidentiality in asbestos bankruptcy trust cases in non-
18 In re Armstrong World lndus., Inc., No. 00-0447l-KG, slip op. 11 2 (Bankr. D. Del. Sept. 8,
2003).
19 Even further to this point, this particular Armstrong order and hearing transcript explicitly
state, "[T]his decision shall not serve as precedent and may not be cited as such for disclosure of
any additional documents of any kind or nature including, without limitation, the references to
documents in the Briefs as well as in the arbitrators’ decisions." Ia'. at 70:l l-l5.
ll
Delaware courts. Regardless of the truth of BorgWarner’s assertions regarding
First State, which First State denies, such an argument is irrelevant for our
purposes here, as disclosure of confidential claimant information in the context of
asbestos bankruptcy trusts is vastly distinguishable from the issue of
confidentiality associated with Delaware arbitrations.
3. Delaware Rapid Arbitration Act ("DRAA")
At the outset, BorgWarner is correct in its assertion that the Wellington
ADR predated the DRAA by at least 25 years. However, BorgWarner fails to take
into consideration that it is this very absence of any default, statutory rules
governing the administration of a formal arbitration in Delaware at that time which
compels the Commissioner to now-contemplate the rules then-established by the
parties, including the intentions of the parties in the creation thereof, to govem the
Wellington arbitration in 1989. Thus, it necessarily follows that, as explained by
the Commissioner, under such circumstances consideration of Delaware public
policy concerning alternative dispute resolution determines how much deference
the Court should afford to the rules established by the Wellington parties.zo
1_ _ _ 1.=
20 Importantly, the Court notes that BorgWarner does not appear to-and nor could it in good
faith-challenge the Commissioner’s determination that "Delaware public policy favors
arbitration and the concomitant confidentiality that naturally ensues from not having a public
trial." Comrn’r Order 7 (citing LG Elecs., Inc. v. Inte)/Digital Comm. Inc., l14 A.3d l246, 1253
(Del. 20l5) (citing Elf Antochem N. Am., lnc. v. Jajj’ari, 727 A.2d 286, 295 (Del. 1999))).
Notably, ElfAntochem was decided by the Delaware Supreme Court well before the DRAA was
enacted, a fact conveniently overlooked by BorgWarner.
12
As to BorgWarner’s assertion that the Commissioner’s Order is contrary to
law based on the Commissioner’s comment that "had the Wellington ADR
occurred under current Delaware law, there is absolutely no doubt that the
evidence presented during the proceeding would have been considered
confidential," when properly read in the context in which it was made, i.e., at the
end of the Commissioner’s analysis of Delaware public policy, the statement is
nothing more than dictum-"A court’s discussion of points or questions not raised
by the record or its suggestion of rules not applicable to the case at bar."zl
Therefore, BorgWarner’s argument is without merit.
C. Waiver Under Rule 45
1. Waiver of Privilege by North River
BorgWarner argues that the Commissioner’s modification of the scope of
documents that must be produced in accordance with the subpoena is too narrow
and contrary to law, because North River effectuated a waiver over all materials on
the same subject matter when it introduced some Wellington documents, including
the Wellington ADR decision, in another litigation, North River Insurance
21 See Black’s Law Dictionary (lOth ed. 2014) (quoting William M. Lile, et al., BriefMaking
and the Use of Law B00ks 307 (Roger W. Cooley & Charles Lesley Ames eds., 3d ed. l9l4))
("As a dictum is by definition no part of the doctrine of the decision, and as the citing of it as a
part of the doctrine is almost certain to bring upon a brief maker adverse comment, lawyers are
accustomed to speak of a dictum rather slightingly, and sometimes they go so far as to intimate a
belief that the pronouncing of a dictum is the doing of a wrong.").
l3
Company v. CIGNA Reinsurance.zz According to BorgWarner, "[o]nce a party
voluntarily discloses a privileged document, that party is deemed to have waived
privilege as to all documents involving the same subject matter, whether or not n
actually disclosed."23 However, BorgWarner fails to explain why this Court
should apply this rule of partial disclosure when North River is not a party to the
underlying litigation and fails to suggest that such an argument was successfully
made by any party in the North River Insurance litigation.
In furtherance of this point and as emphasized by North River, though not
addressed by BorgWarner, the justification behind the rule of partial disclosure is
faimess, which the Commissioner recognized.% "The extent of the disclosure is
guided by the purposes behind the rule: fairness and discouraging use of the
325
attorney-client privilege as a litigation weapon.’ Where, as here, a non-party
seeks to prevent the disclosure of confidential arbitration materials, the non-party
22 52 F.zd 1194 (zrd cir. 1995).
23 BorgWamer’s Mot. for Recons. 24 (citing Citadel Holding Corp. v. Roven, 603 A.2d 818, 825
(Del. 1992)) (emphasis added).
24 See Zirn v. VLI Corp., 621 A.2d 773, 781-82 (Del. l993) ("The purpose underlying the rule of
partial disclosure is one of fairness to discourage the use of the privilege as a litigation weapon in
the interest of fairness."); Citadel, 603 A.2d at 825 ("[T]he purposes behind the rule [are]
fairness and discouraging use of the attorney-client privilege as a litigation weapon."); see also
Comm’r Order 9-10 (citing United Health Alliance, LLC v. United Mea'ical, LLC, 2013 WL
l874588, at *4 (Del. Ch. May 6, 2013) ("North River cannot use evidence that was created
during the Wellington ADR in litigation where it was the plaintiff and then argue that it is still
confidential and not subject to disclosure in unrelated litigation. Consistent with Delaware
decisional law, the Court will not sanction North River’s use of confidential information as a
sword in one context and then shield that same information from disclosure in another.").
25 Hoechest Celanese Corp. v. Nat’l Unz``on Fire Ins. C0. ofPittsbul/gh, Pa., 1995 WL 411805, at
*3 (Del. Super. Mar. l7, 1995) (citation omitted).
14
obtains no benefit vz``s-c``z-vis the parties to the litigation, i.e., BorgWarner, as the
partial disclosure was made in another litigation not involving BorgWarner, and,
thus, any further discovery of the confidential arbitration materials could only have
been effectuated by an adversary of North River in that litigation upon a sufficient
showing of prejudice. Therefore, BorgWarner has failed to show that the
Commissioner’s Order is contrary to law by way of its limited argument as to
subject matter waiver.%
2. J udicial Est0ppel
BorgWarner’s argument that North River is judicially estopped from "now
arguing" that its policies do not pay defense costs is wholly irrelevant to the issues
before this Court, which arise solely as a result of a subpoena issued in conjunction
with an action currently pending in Illinois state court. First, in connection with its
argument, BorgWarner references pages 9-10 of the Commissioner’s Order,
wherein the Commissioner denounces North River’s attempt to use confidential
infonnation "as a sword in one context and then shield that same information from
disclosure in another" and cites to Unz``tea’ Health Alliance, LLC v. Um``tea' Medical,
LLC, where the Chancery Court refused to allow one litigant, who partially
disclosed confidential and prejudicial mediation communications to use against
26 What is more, BorgWarner’s subject matter waiver argument is premised on the assumption
that the arbitration materials are privileged, which, on the one hand, contradicts its previous
arguments, and, on the other hand, relies only on an attorney-client privilege case and not a
confidential arbitration case, an important distinction discussed supra.
15
another litigant, to bar the other litigant’s use other confidential mediation
communications in its favor, as an example of Delaware’s intolerance of such
behavior.27 Nowhere is the doctrine of judicial estoppel relied upon, or even
referenced, by the Commissioner nor could it be reasonably imputed to the
Commissioner’s use of the sword and shield analogy, which is very nearly a term
of art typically used by courts when discussing a waiver of privilege.
Second, on a subject matter basis alone, whether the doctrine of judicial
estoppel is even applicable to North River, as a non-party to the Illinois action and
an intervenor here arguing only to protect its interest in certain confidential
documents requested by BorgWarner, is irrelevant when applied to the facts and
circumstances before this Court. By its own words, BorgWamer acknowledges
that judicial estoppel applies to "a party" and works to preclude such party from
"now arguing" a position inconsistent with a previous position successfully argued
in the same or earlier legal proceeding.zg As North River is not now arguing that
any policies do not pay defense costs, BorgWarner’s judicial estoppel argument
furnishes no basis on which to challenge the Commissioner’s Order.
_C<>nzlug2007 WL 1152159, at *4 (Del. Super. Apr. 13, 2007) (quoting
Cable & Computer Tech., Inc. v. Lockheea' Sanders, Inc., 175 F.R.D. 646, 652 (C.D. Cal. l997)
("[T]he discovery system depends absolutely on good faith and common sense from counsel.
The courts, sorely pressed by demands to try cases promptly and to rule thoughtfully on
potentially case dispositive motions, simply do not have the resources to police closely the
operation of the discovery process . . . . [Counsel] should strive to be cooperative, practical and
sensible, and should turn to the courts (or take positions that force others to turn to the courts)
only in extraordinary situations that implicate truly significant interests.").
17
the asbestos claims themselves (the "Wellington Agreement"). Pursuant to the
Wellington Agreement, the signatories agreed to resolve all disputes through an
alternative dispute resolution ("ADR") process, which led to such an ADR
proceeding involving Intervenors and OWens Corning in 1989 ("Wellington
ADR"). In addition to certain confidentiality provisions in the Wellington
Agreernent, Intervenors and Owens Corning entered into a separate confidentiality
agreement to ensure confidential treatment for certain documents exchanged in the
Wellington ADR.
On May 6, 2015 , in connection with an unrelated insurance coverage matter
currently pending in lllinois state court, BorgWarner served a subpoena on the
Custodian of Records for the Trust, seeking production of the complete file in
--connection with the Wellington ADR.
On August 21, 2015, BorgWarner filed a motion to compel. Subsequently,
First State and North River separately moved to intervene, opposed BorgWarner’s
motion to compel, and filed motions to quash the subpoena. On December 14,
2015, a hearing was held before Commissioner Manning regarding the outstanding
motions, where he ultimately deferred decision and requested supplemental
memoranda from the Parties. On March 15, 2016, Commissioner Manning issued
an Order granting, in part, BorgWarner’s motion to compel and denying, in part,
the Intervenors’ motions to quash, which Order was subsequently corrected on
March 22, 2016.
On March 30, 2016, BorgWarner timely filed a motion for reconsideration
of Commissioner’s Order pursuant to Superior Court Civil Rule l32(a)(3). On
April 13, 2016, Intervenors timely filed their Oppositions to BorgWarner’s Motion
for Reconsideration.
BorgWarner has moved for reconsideration and de novo review of the
Commissioner’s Order granting, in part, and denying, in part, its motion to compel,
arguing that it is contrary to law, because Intervenors failed to demonstrate the
specific harm necessary to satisfy a motion to quash, other courts have permitted
discovery of confidential arbitration documents as well as materials subject to
confidentiality agreements, the insurers have taken contradictory positions on
confidentiality in other cases, the Delaware Rapid Arbitration Act does not apply,
the Wellington Agreement and separate confidentiality agreement do not protect
the materials sought, and North River effectuated a subject matter waiver of the
arbitration materials and is judicially estopped from taking a contrary position on
defense costs.
In response, North River argues that the Commissioner’s Order properly
applied Delaware law favoring settlement, ADR, and enforcement of contracts, as
well as the concomitant confidentiality associated with ADR, because the cases
relied upon by BorgWarner are distinguishable. Further, North River argues that it
did not waive confidentiality of all of the Wellington ADR materials and judicial
estoppel does not apply.
Similarly, First State argues that the Commissioner properly applied
Superior Court Civil Rules 26 and 45 in protecting the Wellington ADR materials
and the cases relied upon by BorgWarner are either not relevant and/or not
binding, particularly as none of the decisions implicate Delaware public policy
protecting the integrity of private arbitration. Further, First State argues that
BorgWarner, again, misconstrues the confidentiality provisions in the Wellington
documents, and all of BorgWarner’s remaining arguments lack merit.
Pursuant to Superior Court Civil Rule 132, Commissioners are empowered
to conduct non case-dispositive hearings and to hear and determine any non case-
dispositive matter pending before the Court, as well as to conduct case-dispositive
hearings and to submit to a judge of this Court proposed findings of fact and
recommendations for the disposition, by a judge, of any such case-dispositive
matter.l Consequently, whether the matter heard by the commissioner is case-
super. 'cr. civ. § 13_2(@1)?3_):(3)(4).
dispositive or not determines the standard of review that a judge of this Court must
apply when a party files an exception thereto.z
With regard to motions for reconsideration of a Commissioner’s order in a
non case-dispositive matter, Rule 132 permits reconsideration by a judge of this
Court "only where it has been shown on the record that the Commissioner’s order
is based upon findings of fact that are clearly erroneous, or is contrary to law, or is
an abuse of discretion."3 Therefore, it follows that where, as here, the moving
party contends that the Commissioner’s order is contrary to law, the burden is on
the moving party to show on the record where the order contravenes the law before
a judge of this Court may reconsider the matter, de novo or at all.4
_Discus_sion:_
As explained more fully below, a near majority of the arguments put forth
by BorgWarner in its attempt to convince this Court that reconsideration of the
Commissioner’s Order is permitted on the sole basis that it is contrary to law,
_»-B
2 Compare Super. Ct. Civ. R. l32(a)(3)(iv) (permitting reconsideration of non case-dispositive
matter "only where it has been shown on the record that the Commissioner’s order is based on
findings of fact that are clearly erroneous, or is contrary to law, or is an abuse of discretion" with
R. _1_32(a)(4)(iv) (mandating de novo determination in case-dispositive matter of objected to
Y"_T;of Commiss_``,'i@Hgi*i§*``-'§ report or proposed of fact or recommendations).
M_ Ct. Civ. R. lf'_§;_``?‘_``_``c§i§``,j@)(i), (iv) (emphasis add_f_f``_":~'°'_,.
4 Niv Castle Cnty. v. Koslyshyn, et al., 2014 WL 1347745, at *3 (Del. Super. June 26, 2014); see
Doe v. Slater, 2014 WL 6669228, at *2-3 (Del. Super. Nov. 12, 2014) (applying non case-
dispositive standard of review pursuant to Super. Ct. Civ. R. l32(a)(3)(iv) to defendants’ motion
for reconsideration of commissioner’s order denying motion to compel and finding review of
entire record appropriate only where subsequent case preparation produced relevant medical
evidence that was not available to the commissioner but which effectively made order contrary to
law).
either fail to include "law" that the Court is bound to apply or follow or, as to areas
of unsettled law, fail to show how the Commissioner’s reasoning in declining to
follow another jurisdiction’s holding is contrary to the law of Delaware. ln those
instances, BorgWarner has simply failed to meet its burden under Superior Court
Civil Rule 132. As to BorgWarner’s remaining arguments, BorgWarner has failed
to show that the Commissioner’s Order is contrary to the applicable law.
A. Good Cause Under Rule 26
BorgWarner has failed to show that the Commissioner’s Order is contrary to
law for not imposing a burden on Intervenors to show that the Trust’s compliance
with the subpoena would result in specific harm to them. Rule 26(0) is titled
"Protective orders" and allows the Court, "[u]pon motion by a party or by the
person from whom discovery is sought, and for good cause shown, . . . [to] make
any order which justice requires to protect a party or person from annoyance,
35
embarrassment, oppression, or undue burden or expense.’ BorgWarner’s
argument that the Commissioner erred in not applying the "good cause"
requirement espoused by Rule 26(c) fails to show why Rule 26(c) is applicable in
the absence of any request by a party or the Trust for a protective order or that a
showing of good cause is otherwise required under the applicable discovery rules.
_?_=_-_q
;S_dper. Civ:{. Z_G_(c)_(emphasis added).
First, BorgWarner’s citation to Tekstrom, Inc. v. Salva, a Court of Common
Pleas case, offers little guidance to this Court in interpreting its own discovery
rules and in no way stands as binding precedent in any event.é Second,
BorgWarner’s citation to Drysa'ale v. Noble is inapposite, as Drysdale involved the
application of Rule 26(c) to the defendant’s request for a protective order, which is
markedly different from the circumstances sub jua’ice, where Intervenors are not
merely seeking to prevent the public’s access to any pre-trial discovery, but are
seeking to prevent discovery in the first place.7
Therefore, because BorgWarner has failed to show that the Intervenors’
motions to quash raised a protective, and not merely a discoverability, issue, it has
failed to meets its burden of showing how the Commissioner’s Order was contrary
to law by not requiring a showing of good cause under Rules 26(b)(l)(a)(i) and
45(c)(3)(A)(ii) and by not applying Rule 26(0).8
B. Other Protected Matter Under Rule 45
BorgWarner advances several arguments challenging the Commissioner’s
purported reliance on the confidentiality protections intended by the parties to the
6 2007 WL 3231632, at *5 (Del. Com. Pl. Oct. 25, 2007). Furthermore, Tekstrom addressed the
issue of scope in conjunction with a motion to quash brought pursuant to Ct. Com. Pl. Civ. R.
45(b), which Rule in no way corresponds to Super. Ct. Civ. R. 45(c)(3)(A) at issue here.
7 2003 WL 21481005, at *l (Del. Super. June l9, 2003).
8 The Court notes that, though the Commissioner’s Order referenced "Rule 26(a)(l)(a)(i)," when
it quoted text from Rule 26(b)(l)(a)(i), in recognizing substance over form, the Court treats the
Commissioner’s citation to Rule 26 as one specifically to § (b)(l)(a)(i). Comm’r Order ll.
7
Wellington Agreement and Confidentiality Agreement as a basis for denying
discovery, which the Court will address in seriatim
1. Confidentiality of the Wellington ADR
BorgWarner contends that the Commissioner’s finding that the Wellington
parties intended every part of the arbitration to be confidential is not supported by
the text of the Wellington Agreement or the "side" confidentiality agreement,
which makes it contrary to law. At the outset, the Court notes that, in making this
argument, BorgWarner misconstrues the Commissioner’s reasoning in this regard,
as the Order clearly states, in conjunction with its determination that the parties
intended every party of the arbitration to be confidential, that "the Court, while not
bound by this fact, will honor the agreement of the parties in this regard as a matter
of public policy for the reasons discussed below."g Thus, the Commissioner’s
Order did not, in f``act, "den[y] much of the information that BorgWarner
subpoenaed on [such] grounds."l°
Moreover, as to the mechanics of its argument, BorgWarner fails to cite to
any case law (binding or not), statute, or otherwise in support of its contention and,
thus, the Court is without any basis upon which to review the Commissioner’s
finding in this regard. Therefore, even if BorgWarner’s argument pertained to an
9 Comm’r Order 6 (emphasis .added).
10 BorgWarner’s Mot. for Recons. 20-21.
actual doctrine of the decision, BorgWarner has not met its burned of showing that
the Commissioner’s Order is contrary to law.ll
2. Discovery of Confldential Materials
BorgWarner contends that, because other courts permit discovery of
materials subject to confidentiality protections, the Commissioner’s Order
declining to follow those decisions is contrary to law.
First, BorgWarner argues, without considering or even mentioning Delaware
public policy’s preference for arbitration_a finding that undergirds the
Commissioner’s Order in this regard_that the Seventh Circuit’s holding in
Gotham Hola’ings, LP v. Health Graa'es, [nc., which affirmed the decision of the
Northern District of Illinois compelling the production of confidential arbitration
documentslz, "is directly on point and mandates disclosure of the documents that
[it] seeks."” To begin with, in making its decision to compel production, the
Seventh Circuit relied on the following distinguishable facts: (i) the ADR
Agreement expressly provided that materials from the arbitration may be disclosed
in response to a subpoena, such that the parties agreed that they would not
ll Even so, a cursory review of BorgWarner’s argument that the Commissioner’s Order is
contrary to the "plain text" of the Wellington documents leads the Court to concur with the
Commissioner’s rather candid description of BorgWarner’s interpretation of certain provisions of
the Wellington Agreement as "tortured." Further, as to the "side confidentiality agreement,"
BorgWarner devotes a mere three sentences to its alleged inapplicability to the matter at hand,
none of which point the Court in the direction of any law, so to speak.
‘2 580 F.zd 664, 666 (vrh cir. 2009).
13 BorgWarner’s Mot. for Recons. ll.