IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
CHRISTOPHER D. VISNIC, MITCHELL ) WEISS, DARRYL PIENING, NICHOLAS G. ) SUDARIC, AMANDA C. MERRELL and ) JENNIFER PHILLIPS, ) ) Plaintiff, ) ) v. ) C.A. No. 2022-0202-NAC ) SEEGRID CORPORATION, JAMES H. ) ROCK STEVEN F. KAPLAN, DAVID ) MOUNT, JOSEPH LUCOT, and DAVID S. ) SHAPIRA, ) ) Defendants. )
ORDER DENYING PLAINTIFFS’ MOTION TO COMPEL FORENSIC AUDIT
WHEREAS:
1. Plaintiffs assert claims concerning Seegrid Corporation’s (“Seegrid”)
Stock Incentive Plan in its original 2015 form, and as amended in 2016 (“Amended
Plan”). Count II alleges Seegrid breached the Amended Plan by, among other things,
repurchasing Plaintiffs’ shares “at prices that were not in good faith, and, in fact, well
below any reasonable estimate of Fair Market Value.” Dkt. 20 ¶¶ 221-227.
2. To prove that claim, Plaintiffs sought discovery of Seegrid’s financial
forecasts and projections. Specifically, Plaintiffs requested any financial forecasts or
projections Seegrid shared with non-party Box Robotics in connection with the
former’s acquisition of the latter (“Box Transaction”). Plaintiffs hope to use those
forecasts and projections (“Box Transaction Projections”) to determine how Seegrid
1 justified a $6.76 per share valuation of its stock in the Box Transaction, while pricing
Plaintiffs’ Seegrid stock at $1.90 per share six months later.
3. Seegrid produced numerous financial forecasts and projections,
including some made in connection with various contemplated and realized
transactions. But Defendants did not produce any Box Transaction Projections.
Instead, Defendants explained the Box Transaction was an “acqui-hire” driven by
Seegrid’s desire to hire Box’s two founders rather than any interest in the actual
company. Thus, Defendants represented that Seegrid did not generate any
valuations or projections to consummate the Box Transaction and thus no Box
Transaction Projections exist that could be produced.
4. Plaintiffs did not believe Defendants and repeatedly pressed for
production of Box Transaction Projections. The parties discussed the issue over
several months and Defendants (1) conducted additional targeted discovery searches
based on Plaintiffs’ requests; (2) disclosed the contents of Seegrid’s “Box Diligence
Folder”; and (3) interviewed the individuals involved in the Box Transaction. See Dkt.
149, Exs. B-I. Nevertheless, Defendants never produced any Box Transaction
Projections, maintaining such documents did not exist.
5. Unconvinced, Plaintiffs filed the instant motion to compel a forensic
audit of Seegrid’s corporate records (“Motion”).
NOW, THEREFORE, the Court having carefully considered the Motion, and
the parties’ arguments with respect thereto, IT IS HEREBY ORDERED, this 29th
day of October 2025, as follows:
2 6. Generally, a party has a right to request any relevant, non-privileged
documents and can move to compel discovery if production is not forthcoming. Given
the temporal proximity between the Box Transaction and Seegrid’s purchase of
Plaintiffs’ shares, Plaintiffs insist any Box Transaction Projections are uniquely
relevant to their purchase price claim. Defendants admit that any extant Box
Forecasts would be relevant. See Dkt. 149 ¶ 29.
7. Yet, the Court cannot “compel a litigant to produce documents it does
not have[.]” E.g., Fitzgerald v. Cantor, 1998 WL 842278, at *1 (Del. Ch. Nov. 16, 1998).
This Court has repeatedly denied motions to compel where the non-movant
“represents it produced all [responsive] documents that exist.” E.g., NRG Barriers,
Inc. v. Jelin, 1996 WL 377014, at *1 (Del. Ch. July 1, 1996); see Mitchell Lane
Publishers, Inc. v. Rasemas, 2014 WL 4693366, *2 (Del. Ch. Sept. 5, 2014). Here,
Defendants have represented that no Box Transaction Projections exists.
8. Defendants submitted several affidavits supporting their assertion that
no Box Transaction Projections exist. See Dkt. 149, Ex. A ¶¶ 5-8; Ex. L ¶¶ 1, 4-7; Ex.
M 1, 4-7. These affidavits further support denying the Motion. See Kaye v. Pantone,
Inc., 1983 WL 18012, *2 (Del. Ch. Mar. 28, 1983). Plaintiffs correctly point out that
these affidavits come from individuals affiliated with Seegrid. Yet, Plaintiffs cite no
contrary evidence suggesting Box Transaction Projections exist, other than
speculation based on Seegrid’s past-practices. See Dkt. 151 ¶¶ 6-15; Dkt. 149 ¶ 23
(“Plaintiffs have identified no produced documents or deposition testimony from any
of the nine [] Seegrid deponents . . . suggesting there are any unproduced projections
3 or forecasts related to the Box acqui-hire.”). See also Roberts v. Kennedy, 141 A. 319,
320 (Del. Ch. 1926) (“a mere speculative possibility cannot be allowed to overcome []
positive testimony.”); Magid v. Acceptance Ins. Companies, Inc., 2001 WL 1497177,
at *8 (Del. Ch. Nov. 5, 2001) (holding a party “cannot substitute unsupported
conclusory assertions for evidence.”). The authorities Plaintiffs cite to suggest the
Court reject the affidavits are distinguishable. See Wickkiser v. Wright, 1990 WL
127865, at *2 (Del. Super. Aug. 28, 1990) (holding an affidavit was “conclusory and
self-serving, and [] therefore entitled to little weight,” in part, because the affidavit
was internally contradictory regarding the at-issue fact); Brown v. Wiltbank, 2010 WL
892069, at *3 (Del. Ch. Feb. 22, 2010) (holding a “self-serving” affidavit “does not
constitute clear and convincing evidence of an oral contract,” not that it was irrelevant
(emphasis added)).
9. Plaintiffs’ speculation does not justify ordering a third-party forensic
audit, which is indisputably more burdensome than a typical motion to compel. See
Summit Fire & Security LLC v. Kolias, 2022 WL 3572827, at *2-3 (Del. Ch. Aug. 19,
2022). The sparse on-point Delaware caselaw suggests such audits are only
warranted when the non-movant has repeatedly been uncooperative in discovery and
there is a substantial risk of spoilation or there exists other relatively exceptional
circumstances warranting the relief. See id.; DG BF, LLC v. Ray, 2021 WL 5436868,
at *2-3, 6 (Del. Ch. Nov. 19, 2021).
10. Indeed, the federal authorities on which Plaintiffs rely explicitly held
“mere skepticism that an opposing party has not produced all relevant information is
4 not sufficient to warrant drastic electronic discovery measures[,]” including a forensic
audit. E.g., John B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008) (citing McCurdy Group,
LLC v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 831 (10th Cir. 2001)); see
France v. Chippewa County, 2021 WL 11431784, at *2 (W.D. Mich. Nov. 22, 2021)
(only ordering a forensic audit after finding movant did not base its request on mere
speculation). Instead, Plaintiffs’ authority supports the position that forensic audits
should only be ordered where (1) there is a risk that evidence will be or has been
destroyed; or (2) the non-movant’s prior discovery efforts have been significantly
insufficient or uncooperative. See John B., 531 F.3d at 460; France, 2021 WL
11431784, at *1-2; Peskoff v. Faber, 244 F.R.D. 54, 58-61 (D.D.C 2007); Covad
Communications Co. v. Revonet, Inc., 258 F.R.D. 5, 13-14 (D.D.C. 2009).
11. Plaintiffs do not argue, and there is no evidence indicating, that
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IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
CHRISTOPHER D. VISNIC, MITCHELL ) WEISS, DARRYL PIENING, NICHOLAS G. ) SUDARIC, AMANDA C. MERRELL and ) JENNIFER PHILLIPS, ) ) Plaintiff, ) ) v. ) C.A. No. 2022-0202-NAC ) SEEGRID CORPORATION, JAMES H. ) ROCK STEVEN F. KAPLAN, DAVID ) MOUNT, JOSEPH LUCOT, and DAVID S. ) SHAPIRA, ) ) Defendants. )
ORDER DENYING PLAINTIFFS’ MOTION TO COMPEL FORENSIC AUDIT
WHEREAS:
1. Plaintiffs assert claims concerning Seegrid Corporation’s (“Seegrid”)
Stock Incentive Plan in its original 2015 form, and as amended in 2016 (“Amended
Plan”). Count II alleges Seegrid breached the Amended Plan by, among other things,
repurchasing Plaintiffs’ shares “at prices that were not in good faith, and, in fact, well
below any reasonable estimate of Fair Market Value.” Dkt. 20 ¶¶ 221-227.
2. To prove that claim, Plaintiffs sought discovery of Seegrid’s financial
forecasts and projections. Specifically, Plaintiffs requested any financial forecasts or
projections Seegrid shared with non-party Box Robotics in connection with the
former’s acquisition of the latter (“Box Transaction”). Plaintiffs hope to use those
forecasts and projections (“Box Transaction Projections”) to determine how Seegrid
1 justified a $6.76 per share valuation of its stock in the Box Transaction, while pricing
Plaintiffs’ Seegrid stock at $1.90 per share six months later.
3. Seegrid produced numerous financial forecasts and projections,
including some made in connection with various contemplated and realized
transactions. But Defendants did not produce any Box Transaction Projections.
Instead, Defendants explained the Box Transaction was an “acqui-hire” driven by
Seegrid’s desire to hire Box’s two founders rather than any interest in the actual
company. Thus, Defendants represented that Seegrid did not generate any
valuations or projections to consummate the Box Transaction and thus no Box
Transaction Projections exist that could be produced.
4. Plaintiffs did not believe Defendants and repeatedly pressed for
production of Box Transaction Projections. The parties discussed the issue over
several months and Defendants (1) conducted additional targeted discovery searches
based on Plaintiffs’ requests; (2) disclosed the contents of Seegrid’s “Box Diligence
Folder”; and (3) interviewed the individuals involved in the Box Transaction. See Dkt.
149, Exs. B-I. Nevertheless, Defendants never produced any Box Transaction
Projections, maintaining such documents did not exist.
5. Unconvinced, Plaintiffs filed the instant motion to compel a forensic
audit of Seegrid’s corporate records (“Motion”).
NOW, THEREFORE, the Court having carefully considered the Motion, and
the parties’ arguments with respect thereto, IT IS HEREBY ORDERED, this 29th
day of October 2025, as follows:
2 6. Generally, a party has a right to request any relevant, non-privileged
documents and can move to compel discovery if production is not forthcoming. Given
the temporal proximity between the Box Transaction and Seegrid’s purchase of
Plaintiffs’ shares, Plaintiffs insist any Box Transaction Projections are uniquely
relevant to their purchase price claim. Defendants admit that any extant Box
Forecasts would be relevant. See Dkt. 149 ¶ 29.
7. Yet, the Court cannot “compel a litigant to produce documents it does
not have[.]” E.g., Fitzgerald v. Cantor, 1998 WL 842278, at *1 (Del. Ch. Nov. 16, 1998).
This Court has repeatedly denied motions to compel where the non-movant
“represents it produced all [responsive] documents that exist.” E.g., NRG Barriers,
Inc. v. Jelin, 1996 WL 377014, at *1 (Del. Ch. July 1, 1996); see Mitchell Lane
Publishers, Inc. v. Rasemas, 2014 WL 4693366, *2 (Del. Ch. Sept. 5, 2014). Here,
Defendants have represented that no Box Transaction Projections exists.
8. Defendants submitted several affidavits supporting their assertion that
no Box Transaction Projections exist. See Dkt. 149, Ex. A ¶¶ 5-8; Ex. L ¶¶ 1, 4-7; Ex.
M 1, 4-7. These affidavits further support denying the Motion. See Kaye v. Pantone,
Inc., 1983 WL 18012, *2 (Del. Ch. Mar. 28, 1983). Plaintiffs correctly point out that
these affidavits come from individuals affiliated with Seegrid. Yet, Plaintiffs cite no
contrary evidence suggesting Box Transaction Projections exist, other than
speculation based on Seegrid’s past-practices. See Dkt. 151 ¶¶ 6-15; Dkt. 149 ¶ 23
(“Plaintiffs have identified no produced documents or deposition testimony from any
of the nine [] Seegrid deponents . . . suggesting there are any unproduced projections
3 or forecasts related to the Box acqui-hire.”). See also Roberts v. Kennedy, 141 A. 319,
320 (Del. Ch. 1926) (“a mere speculative possibility cannot be allowed to overcome []
positive testimony.”); Magid v. Acceptance Ins. Companies, Inc., 2001 WL 1497177,
at *8 (Del. Ch. Nov. 5, 2001) (holding a party “cannot substitute unsupported
conclusory assertions for evidence.”). The authorities Plaintiffs cite to suggest the
Court reject the affidavits are distinguishable. See Wickkiser v. Wright, 1990 WL
127865, at *2 (Del. Super. Aug. 28, 1990) (holding an affidavit was “conclusory and
self-serving, and [] therefore entitled to little weight,” in part, because the affidavit
was internally contradictory regarding the at-issue fact); Brown v. Wiltbank, 2010 WL
892069, at *3 (Del. Ch. Feb. 22, 2010) (holding a “self-serving” affidavit “does not
constitute clear and convincing evidence of an oral contract,” not that it was irrelevant
(emphasis added)).
9. Plaintiffs’ speculation does not justify ordering a third-party forensic
audit, which is indisputably more burdensome than a typical motion to compel. See
Summit Fire & Security LLC v. Kolias, 2022 WL 3572827, at *2-3 (Del. Ch. Aug. 19,
2022). The sparse on-point Delaware caselaw suggests such audits are only
warranted when the non-movant has repeatedly been uncooperative in discovery and
there is a substantial risk of spoilation or there exists other relatively exceptional
circumstances warranting the relief. See id.; DG BF, LLC v. Ray, 2021 WL 5436868,
at *2-3, 6 (Del. Ch. Nov. 19, 2021).
10. Indeed, the federal authorities on which Plaintiffs rely explicitly held
“mere skepticism that an opposing party has not produced all relevant information is
4 not sufficient to warrant drastic electronic discovery measures[,]” including a forensic
audit. E.g., John B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008) (citing McCurdy Group,
LLC v. Am. Biomedical Group, Inc., 9 Fed. Appx. 822, 831 (10th Cir. 2001)); see
France v. Chippewa County, 2021 WL 11431784, at *2 (W.D. Mich. Nov. 22, 2021)
(only ordering a forensic audit after finding movant did not base its request on mere
speculation). Instead, Plaintiffs’ authority supports the position that forensic audits
should only be ordered where (1) there is a risk that evidence will be or has been
destroyed; or (2) the non-movant’s prior discovery efforts have been significantly
insufficient or uncooperative. See John B., 531 F.3d at 460; France, 2021 WL
11431784, at *1-2; Peskoff v. Faber, 244 F.R.D. 54, 58-61 (D.D.C 2007); Covad
Communications Co. v. Revonet, Inc., 258 F.R.D. 5, 13-14 (D.D.C. 2009).
11. Plaintiffs do not argue, and there is no evidence indicating, that
Defendants have destroyed evidence or are likely to do so in the future. See Dkt. 140;
Dkt. 151. This alone suggests that Plaintiffs’ Motion should be denied. See France,
2021 WL 11431784, at *1 (“[C]ourts rarely compel the use of forensic imaging unless
a party can demonstrate either that evidence has been destroyed or a real danger
that it will be.” (internal quotes omitted)); DG BF, 2021 WL 5436868, at *5-6.
12. Further, Plaintiffs do not meaningfully challenge the sufficiency of
Defendants’ discovery efforts. See Dkt. 140; Dkt. 151. The only specific instance of
non-cooperation Plaintiffs flag is Defendants’ “failure to turn over the diligence folder
responsive to requests propounded in March 2024.” This falls well short of the repeat
violations of court issued discovery orders that justified a forensic audit in DG BF.
5 See 2021 WL 5436868, at *6. Moreover, Defendants have since produced the entire
Box Diligence Folder, which did not contain any Box Transaction Projections. See Dkt.
149, Ex. J.
13. Thus, Plaintiffs have not shown that there is a risk of spoilation or that
Defendants flouted discovery rules or refused to participate in the discovery process.
As such, according to Plaintiffs own authorities, a forensic audit is not warranted,
and the Motion should be denied. All Plaintiffs are left with is their assertion that
“it remains highly unlikely” that no Box Transaction Projections exist given Seegrid’s
practices concerning other transactions and industry norms. Dkt. 140 ¶¶ 13-14; see
Dkt. 151 ¶¶ 9-10. Yet, Defendants proffer a reasonable explanation, supported by
affidavits, for why the Box Transaction was different than Seegrid’s other
acquisitions—namely, the Box Transaction was an “acqui-hire” driven solely by
Seegrid’s desire to hire Box’s founders. See Dkt. 149 ¶¶ 6, 20, 25, 28; id., Ex. A ¶¶ 2-
4; Ex. L ¶¶ 1-3; Ex. M ¶¶ 1-3. Given the Box Transaction’s nature, the major
participants each affirmed no Seegrid projections or valuations were necessary to
close the deal. See id., Dkt. A. ¶¶ 1, 4-7, 10; Ex. L ¶¶ 1, 5-9; Ex. M ¶¶ 1, 5-9.
Defendants’ representation that no Box Transaction Projections exist comports with
that understanding. Further, as discussed, Plaintiffs efforts to discredit those
affidavits fall flat.
14. Therefore, the Court concludes Plaintiffs have not shown that a third-
party forensic audit of Seegrid’s electronic records is justified. The Motion is denied.
6 15. Anticipating that result, Seegrid seeks its costs and fees incurred in
opposing the Motion pursuant to Court of Chancery Rule 37(a)(4)(B). See Dkt. 149 ¶¶
38-41. Seegrid argues Plaintiffs’ Motion “was not substantially justified” because it
(1) lacked a factual basis; and (2) “offer[ed] only tenuous legal support . . . citing a
single in-state case [] [] which declined to grant a forensic audit.” Id.
16. If a motion to compel discovery is denied:
the Court . . . shall, after affording an opportunity to be heard, require the moving party or the attorney advising the motion or both of them to pay the party [] [] who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the Court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
Ct. Ch. R. 37(a)(4)(B). Rule 37(a)(4)’s plain text “requires that an opportunity for a
hearing be afforded before awarding attorney’s fees and costs.” Monsanto Co. v. Aetna
Cas. And Sur. Co., 1990 WL 200471, at *2 (Del. Super. Dec. 4, 1990); see Pharmerica
Long Term Care Inc. v. New Castle RX, LLC, 2010 WL 5130746, at *2, 4-5 (Del. Ch.
Dec. 8, 2010).
17. Accordingly, the Court defers its ruling on whether Seegrid is entitled
to an award of reasonable fees and expenses until after the parties are afforded an
opportunity to be heard on the issue. The parties will contact chambers to schedule
a hearing on the issue.
/s/ Nathan A. Cook Vice Chancellor Nathan A. Cook