IN THE SUPREME COURT OF THE STATE OF DELAWARE
DELAWARE CLAIMS PROCESSING, § FACILITY, LLC; ARMSTRONG § WORLD INDUSTRIES, INC. § ASBESTOS PERSONAL INJURY § SETTLEMENT TRUST; THE § BABCOCK & WILCOX COMPANY § No. 469, 2025 ASBESTOS PI TRUST; CELOTEX § ASBESTOS SETTLEMENT TRUST; § Court Below: Court FEDERAL-MOGUL ASBESTOS § of Chancery of the PERSONAL INJURY TRUST; THE § State of Delaware FLINTKOTE ASBESTOS TRUST; § OWENS CORNING FIBREBOARD § C.A. No. 2025-0404 ASBESTOS PERSONAL INJURY § TRUST; OWENS-ILLINOIS § ASBESTOS PERSONAL INJURY § TRUST; PITTSBURGH CORNING § CORPORATION ASBESTOS § PERSONAL INJURY SETTLEMENT § TRUST; UNITED STATES GYPSUM § ASBESTOS PERSONAL INJURY § SETTLEMENT TRUST; and WRG § ASBESTOS PI TRUST, § § Defendants Below, § Appellants, § § v. § § DBMP LLC; JOHNSON & JOHNSON; § PECOS RIVER TALC, LLC; RED § RIVER TALC, LLC; J-M § MANUFACTURING CO., INC.; THE § DOW CHEMICAL COMPANY; § ROHM AND HAAS COMPANY; and § UNION CARBIDE CORPORATION, § § Plaintiffs Below, § Appellees. § Submitted: May 6, 2026 Decided: July 31, 2026
Before SEITZ, Chief Justice; TRAYNOR, LEGROW, GRIFFITHS, Justices, and MUCH, Judge,1 constituting the Court en banc.
Upon appeal from the Court of Chancery of the State of Delaware. REVERSED and REMANDED.
Edwin J. Harron, Esquire (argued), Kevin A. Guerke, Esquire, Lauren Dunkle Fortunato, Esquire, Renae P. Pagano, Esquire, YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware, for Defendant Below/Appellant Delaware Claims Processing Facility, LLC.
K. Tyler O’Connell, Esquire (argued), Kirsten A. Zeberkiewicz, Esquire, Barnaby Grzaslewicz, Esquire, Alena V. Smith, Esquire, Samuel E. Bashman, Esquire, MORRIS JAMES LLP, Wilmington, Delaware, for Defendants Below/Appellants Armstrong World Industries, Inc. Asbestos Personal Injury Settlement Trust; The Babcock & Wilcox Company Asbestos PI Trust; Celotex Asbestos Settlement Trust; Federal-Mogul Asbestos Personal Injury Trust; The Flintkote Asbestos Trust; Owens Corning Fibreboard Asbestos Personal Injury Trust; Owens-Illinois Asbestos Personal Injury Trust; Pittsburgh Corning Corporation Asbestos Personal Injury Settlement Trust; United States Gypsum Asbestos Personal Injury Settlement Trust; and WRG Asbestos PI Trust.
Kelly E. Farnan, Esquire, Blake Rohrbacher, Esquire, Christine D. Haynes, Esquire, RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware, for Plaintiffs Below/Appellees.
Gregory M. Gordon, Esquire, Daniel B. Prieto, Esquire, JONES DAY, Dallas, Texas; Morgan R. Hirst, Esquire, JONES DAY, Chicago, Illinois; C. Kevin Marshall, Esquire, (argued), David S. Torborg, Esquire, David Wreesman, Esquire, JONES DAY, Washington, D.C., for Plaintiffs-Below/Appellees DBMP LLC; Johnson & Johnson; Pecos River Talc, LLC; and Red River Talc, LLC.
1 Sitting by designation under Del. Const. art. IV, § 12 and Supreme Court Rules 2(a) and 4(a) to complete the quorum. 2 Allison M. Brown, Esquire, Kristen R. Fournier, Esquire, KIRKLAND & ELLIS LLP, New York, New York, for Plaintiffs Below/Appellees Johnson & Johnson; Pecos River Talc, LLC; Red River Talc, LLC; The Dow Chemical Company; and Union Carbide Corporation.
John C. Phillips, Jr., Esquire, PHILLIPS, MCLAUGHLIN & HALL, P.A., Wilmington, Delaware for Amici Curiae.
3 TRAYNOR, Justice:
In this interlocutory appeal, we consider whether the Court of Chancery erred
by invoking sua sponte a centuries-old discovery mechanism: the equitable bill of
discovery. Courts of equity used this mechanism to facilitate discovery between
parties before the adoption of formal discovery rules. The court invoked the
mechanism here in a declaratory-relief action in which a group of asbestos
manufacturers sought a declaration that numerous settlement trusts and their data-
processing facility were required to retain information to which the manufacturers
had no present right to obtain. By that, we mean that the information was not the
subject of a pending subpoena or discoverable in a specifically identified pending or
anticipated lawsuit.
The settlement trusts and the data-processing facility moved to dismiss the
manufacturers’ complaint based on, among other grounds, their failure to state a
claim upon which relief can be granted. Although the manufacturers did not
explicitly request an equitable bill of discovery, the Court of Chancery found that
they had adequately pleaded one and denied the settlement trusts’ motion.
Recognizing that “this case presents sufficiently novel issues of law and a
sufficiently specific set of alleged facts that an early assessment from the justices
4 would be optimal,”2 the Court of Chancery recommended that we accept an
interlocutory appeal from its decision. We have done so and, as explained more fully
below, even accepting the current viability of an action for an equitable bill of
discovery, we conclude that the manufacturers’ complaint failed to plead all the
required elements of their claim. Thus, we reverse.
I
Our discussion of the factual background is drawn from the well pleaded
allegations in the manufacturers’ Verified First Amended Complaint for Declaratory
and Injunctive Relief.
A
The plaintiffs are asbestos manufacturers 3 (collectively, the “Manufacturers”)
and, as such, are regularly named as defendants in asbestos litigation. When an
asbestos plaintiff files a claim alleging harm caused by asbestos exposure at the
hands of a manufacturer, one strategy the manufacturers will typically pursue is to
identify other potential sources of asbestos exposure that contributed to the
plaintiff’s injuries. Identifying other sources of exposure affects the value of the
plaintiff’s claim as the Manufacturers explain in their complaint:
2 Order, DBMP LLC v. Delaware Claims Processing Facility, LLC, No. 2025-0404 (Del. Ch. Nov. 14, 2025), D.I. 73. 3 DBMP LLC; Johnson & Johnson; Pecos River Talc, LLC; Red River Talc, LLC; J-M Manufacturing Co., Inc.; The Dow Chemical Company; Rohm and Haas Company; and Union Carbide Corporation. 5 The extent to which claimants have been exposed to alternative sources of asbestos is critical in determining the value of a claim against a particular defendant. A claim with few alternative exposures typically has a higher value than a claim with multiple alternative exposures. The extent to which a plaintiff has recovered from other defendants or asbestos trusts also typically reduces the amount that plaintiff can recover from a particular defendant . . . . 4
But this strategy can be challenging. As we recognized in Droz v. Hennessy
Industries, LLC,
[a]sbestos exposure cases are beset with evidentiary challenges. The latency period before disease onset is lengthy. Memories fade about the circumstances of exposure. The plaintiff often passes away before litigation is concluded. These challenges are particularly acute when it comes to product identification—proving that the plaintiff was exposed to an asbestos-containing product manufactured by a specific defendant.5
The Manufacturers thus look to sources of information other than the asbestos
plaintiff and his or her counsel to identify other asbestos exposures that may have
contributed to the plaintiff’s injuries. One such source is asbestos settlement trusts.
B
Asbestos settlement trusts were created when mass litigation forced numerous
asbestos manufacturers and users into bankruptcy. The concept traces its origin to
the bankruptcy plan of the formerly prominent asbestos manufacturer, Johns-
Manville Corporation.
4 App. to Opening Br. at A16 (Compl. ¶ 8). 5 Droz v. Hennessy Indus., LLC, 275 A.3d 257, 261 (Del. 2022). 6 In the 1980s, after finding itself named as a defendant in virtually every
asbestos-related lawsuit, Johns-Manville filed for bankruptcy. Its reorganization
plan was designed to ensure that (i) the reorganized company could continue its
business operations and (ii) asbestos plaintiffs could receive compensation for the
harm they suffered.
The reorganization plan included the creation of a settlement trust, which was
funded to provide compensation for claims brought against Johns-Manville. The
bankruptcy court also issued a channeling injunction requiring claims against the
underlying bankrupt asbestos manufacturer to be submitted to the trust. Asbestos
plaintiffs in consequence could not sue Johns-Manville in court.
After Congress amended the bankruptcy code in 1994 6 to expressly authorize
debtors facing substantial asbestos-related liabilities to establish settlement trusts
and to obtain channeling injunctions like Johns-Manville’s model, several bankrupt
asbestos manufacturers followed that model. Under the Johns-Manville model, a
claimant seeking compensation from a settlement trust for asbestos-related injuries
must file a claim with the trust through a detailed application, containing
a medical diagnosis of an asbestos-related disease; supporting medical records; documentation of the individual’s exposure to asbestos
6 Bankruptcy Reform Act of 1994, Pub. L. No. 103–394, 108 Stat. 4106 (1994) (codified as amended at 11 U.S.C. § 524). 7 (including work history, job site records, and witness statements); and proof of product use. 7
The individual’s information, along with the documents generated in reviewing the
application, is referred to in the Manufacturers’ complaint as “Claims Data.”
Asbestos-exposure information provided by a claimant and encompassed
within a claimant’s Claims Data comes into play when a claimant sues solvent
asbestos manufacturers like the Manufacturers. According to the Manufacturers,
“[d]isclosure of various categories of information contained within the Claims Data
now is a standard part of a [tort claimant’s] disclosure obligations under case
management and discovery orders in consolidated asbestos dockets across the
United States.” 8
C
Ten of the eleven defendants 9 in this case are settlement trusts, and the
eleventh is the Delaware Claims Processing Facility, LLC, an entity retained by the
trusts to facilitate claim processing (collectively, the “Trusts”). By January 2025,
the Trusts adopted data policies (“Data Policies”)—which, in the Trusts’ telling—
7 App. to Opening Br. at A30 (Compl. ¶ 50). 8 Id. at A32–33 (Compl. ¶ 55) (footnote omitted). 9 Armstrong World Industries, Inc. Asbestos Personal Injury Settlement Trust; The Babcock & Wilcox Company Asbestos PI Trust; Celotex Asbestos Settlement Trust; Federal-Mogul Asbestos Personal Injury Trust; The Flintkote Asbestos Trust; Owens Corning Fibreboard Asbestos Personal Injury Trust; Owens-Illinois Asbestos Personal Injury Trust; Pittsburgh Corning Corporation Asbestos Personal Injury Settlement Trust; United States Gypsum Asbestos Personal Injury Settlement Trust; and WRG Asbestos PI Trust. 8 bring them into compliance with various data protection laws. These data protection
laws place limits on the personal data an organization may obtain and retain. The
Data Policies implemented the limits by requiring the destruction of Claims Data
after a specified time.
The Trusts notified past claimants of this development, stating that they were
[b]eginning the process of destroying data and documents submitted to the Trust[s] by claimants whose claims have been: (1) issued a payment, (2) withdrawn by counsel, or (3) deemed withdrawn by the Trust (collectively, ‘Resolved Claims’).10
According to the notices, the Trusts’ Data Policies were being implemented
“to enhance the protection of [the claimants’] personal and sensitive information.”11
The Manufacturers learned about the Data Policies and determined that, if the
policies are implemented, they will lose their ability to obtain the Claims Data for
the purpose of defending against asbestos lawsuits.
The Manufacturers look askance at the Trusts’ profession of their intent in
adopting the Data Policies, contending that the policies “were specifically designed
to evade the [Trusts’] obligation to produce highly relevant information in current
and future legal proceedings . . . and to otherwise compromise the ability of asbestos
defendants to defend current and future asbestos-related claims.”12 Additionally, the
10 App. to Opening Br. at A39 (Compl. ¶ 68). 11 Id. at A60–79 (Compl. Exs. A, B, L, M, N, O, P, Q, R, S). 12 Id. at A15–16 (Compl. ¶ 7). 9 Manufacturers allege that the Claims Data contains information protected by trust
transparency laws, which were enacted in response to concerns about suppression of
evidence in asbestos litigation and to provide solvent asbestos manufacturers with
the right to seek discovery against asbestos trusts. They allege further that they hold
indirect claims against the Trusts (“claims . . . for reimbursement, indemnification,
subrogation and/or contribution”), 13 without identifying the nature of the claims or
the trust claimants whose trust claims are implicated.
D
The Manufacturers sued the Trusts in the Court of Chancery seeking a
declaration that the Trusts had a duty to preserve the Claims Data. The
Manufacturers also requested an injunction that would require the Trusts to retain
the data.
By stipulation, eventually entered by the court as an order, the Trusts agreed
that the policies would not take effect while the litigation was pending. The Trusts
then moved to dismiss the complaint,14 arguing that (i) the Court of Chancery lacked
subject matter jurisdiction over the action because, among other things, injunctive
relief was no longer required, (ii) the Manufacturers lacked standing to bring the
13 Id. at A13–14 (Compl. ¶ 4). 14 The settlement trust defendants first moved to dismiss. Delaware Claims Processing Facility filed its own motion to dismiss but joined in the arguments made by the settlement trust defendants. For the sake of clarity, and because the substance of the motions is identical, we refer to the motions as a single motion. 10 lawsuit, and (iii) the Manufacturers failed to state a claim upon which relief can be
granted.
The Court of Chancery, after full briefing and oral argument on the Trusts’
motion, requested supplemental briefing on the applicability of a “traditional
equitable device”—later identified as the equitable bill of discovery—used to
“preserv[e] discovery that otherwise could be lost.” 15 This request was prompted by
the court’s “nagging feeling . . . that there was a historical analog to the pending
action” and its resulting independent research. 16 Before that, the Manufacturers had
not invoked the Court of Chancery’s jurisdiction to secure an equitable bill of
discovery. After the parties submitted their supplemental briefs, the court issued its
ruling on the Trusts’ motion to dismiss.
The court denied the motion, making relatively short work of the Trusts’
jurisdictional and standing arguments. Its focus, instead, was on the Manufacturers’
entitlement to an equitable bill of discovery. Though, as noted, the “bill” was not
mentioned in the Manufacturers’ complaint, the court concluded that the complaint
alleged facts sufficient to state a claim for one. The court did not explicitly address
the adequacy of the pleadings as to the Manufacturers’ request for declaratory relief.
15 Letter, DBMP LLC v. Delaware Claims Processing Facility, LLC, No. 2025-0404 (Del. Ch. July 24, 2025), D.I. 57. 16 Id. 11 E
The Trusts applied for certification of an interlocutory appeal. The Court of
Chancery granted the application, and we accepted the appeal. The Trusts now lead
with an attack on the Manufacturers’ standing. As to the merits, the Trusts argue that
the Court of Chancery erred not only by sua sponte raising the specter of an
equitable-bill-of-discovery claim but also by concluding that the complaint
adequately pleaded such a claim. From an alternative angle, the Trusts assert that
the Manufacturers waived the equitable-bill-of-discovery claim, and the Court of
Chancery erred by entertaining it.
The Manufacturers contest each of those arguments and raise an issue of their
own—that is, that this Court can affirm the decision below by determining that the
declaratory-judgment claim was adequately pleaded.
II
We review the Court of Chancery’s denial of the Trusts’ motion to dismiss de
novo.17 Our review of the adequacy of the pleading of a claim proceeds in
accordance with a well-settled standard:
[A]ll well-pleaded factual allegations are accepted as true; . . . even vague allegations are “well-pleaded” if they give the opposing party notice of the claim; . . . the Court must draw all reasonable inferences in favor of the non-moving party; and . . . dismissal is inappropriate
17 Brookfield Asset Mgmt., Inc. v. Rosson, 261 A.3d 1251, 1262 (Del. 2021) (citing In re Santa Fe Pac. Corp. S’holder Litig., 669 A.2d 59, 70 (Del. 1995)). 12 unless the “plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof.” 18
III
The Trusts challenge the Manufacturers’ standing, arguing that the
Manufacturers did not plead a case or controversy. Because we reverse the Court of
Chancery on other grounds, we need not determine whether the Manufacturers have
standing; their “standing will not affect the outcome of the appeal[.]” 19 We therefore
“bypass standing and proceed to the merits.” 20
As mentioned above, the Court of Chancery invoked sua sponte the equitable
bill of discovery and held that the complaint sufficiently pleaded a claim for the bill.
According to the Trusts, the Court of Chancery erroneously conceived that a bill of
discovery could support a permanent, unlimited document preservation order
directed to a third-party—that is, an entity not otherwise in litigation in this state or
subject to a pending subpoena. The Trusts contend that there is no legal or equitable
precedent that would justify the imposition of “a permanent, unlimited document
preservation order against [them].” 21 Preservation orders, they note, are typically
issued by a court that is managing discovery relevant to the claims and defenses
before it.
18 In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 168 (Del. 2006) (quoting Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002)). 19 Town of Fenwick Island v. State, --- A.3d ---, 2026 WL 1468816, at *3 (Del. May 26, 2026). 20 Id. (citing McKenna v. Singer, 2017 WL 3500241, at *15 n.218 (Del. Ch. July 31, 2017)). 21 Opening Br. at 22. 13 The Trusts argue further that, in any event, the Manufacturers did not plead a
cognizable claim for an equitable bill of discovery. To find otherwise, the Trusts
insist, would bless the creation of a new cause of action for an order mandating broad
document and data preservation divorced from a request for targeted discovery in a
specific case. And consistently with their position in the Court of Chancery, the
Trusts contend that, because the Manufacturers did not expressly request a bill of
discovery in their complaint, that request was waived.
We agree that the complaint does not contain a sufficiently pleaded claim for
an equitable bill of discovery. Our explanation of this conclusion follows.
A
In Curran v. Craven, Chancellor Seitz, in response to the petitioner’s
invocation of “the historic jurisdiction of equity courts to grant bills of discovery to
procure evidence for use in other courts[,]” observed that such jurisdiction was “too
well settled to be disputed.” 22 It is equally indisputable that the Court of Chancery’s
jurisdiction to grant an equitable bill of discovery to facilitate discovery in actions
at law has rarely—if ever—been invoked in the 70 years since Curran v. Craven was
decided.23 This, we surmise, explains why the plaintiffs here did not ask for an
equitable bill of discovery in their complaint. We suppose further that the need to
22 125 A.2d 375, 376–77 (Del. Ch. 1956). 23 The parties have not cited, nor has the Court uncovered, any post-Curran Delaware opinions mentioning an equitable bill of discovery. 14 resort to this unusual discovery tool has been largely obviated by modern discovery
rules. At any rate, the infrequency of its use has left us with a relative dearth of
caselaw to consult as we attempt to discern the conditions under which a claim for
an equitable bill of discovery will lie. Fortunately, however, two venerable treatises
on equity and a handful of cases from other jurisdictions provide a helpful guide.
i
The equitable bill of discovery functioned as a discovery mechanism before
the promulgation of the formal rules of discovery. Justice Story, in his
Commentaries on Equity Jurisprudence, identified the probable origin of equitable-
bill-of-discovery proceedings in modern courts of equity as residing in actions
cognizable under Roman law. 24 One such action, actiones ad exhibendum, related
to the production of things, or deeds or documents in which another person had an
interest. 25 Another, actiones interrogatoriæ, were bills that requested another party
to answer under oath to interrogatories.26 Justice Story observed that, by the time of
Justinian, interrogatories were propounded only in cases in litigation.27 Regardless
of the form of discovery a party sought, Roman law required that the requesting
24 2 Joseph Story, Commentaries on Equity Jurisprudence, § 1487 (Melville M. Bigelow ed., 13th ed. 1886). 25 Id. 26 Id. 27 Id. 15 party have legal capacity and that the discovery “should respect some right of
action.”28
Bills of discovery in our courts of equity, Justice Story wrote, “are greatly
favored in equity, and will be sustained in all cases where some well-founded
objection does not exist against the exercise of the jurisdiction.”29 Although “every
bill in equity may properly be deemed a bill of discovery,” Justice Story clarified
that in equity
a bill of discovery is a bill which asks no relief, but which simply seeks the discovery of facts resting on the knowledge of the defendant, or the discovery of deeds, or writings, or other things in possession or power of the defendant, in order to maintain the right or title of the party asking it in some suit or proceeding in another court. 30
He added that “in general it seems necessary, in order to maintain a bill of discovery,
that an action should be already commenced in another court to which it should be
auxiliary”; but there are rare exceptions—for example, when the object of discovery
is to ascertain the proper party to sue.31
28 Id. 29 Id. at § 1488. 30 Id. at § 1483. 31 Id. 16 Although the treatise does not expressly set forth the elements of an equitable
bill of discovery, key features of a bill emerge, features that seem to have guided the
Court of Chancery in its formulation of the elements of the claim.
One feature is that the petition for a bill must clearly demonstrate that the party
seeking discovery has an interest in the discovery.32 Additionally, the petition must
seek discovery that is material to a specifically identifiable anticipated or pending
action. Such discovery is material when it supports “a good ground of action” for a
plaintiff or “a good ground of defense” for a defendant. 33 A bill of discovery will
not be granted, however, if a court of law can compel discovery. 34 Put another way,
legal relief must be inadequate.35
John Norton Pomeroy, in his treatise on equity jurisprudence, concurs with
Justice Story in his conception of the equitable bill of discovery. For Pomeroy, the
party seeking the bill must have “a right to maintain or defend an action in another
court”; that specific cause of action must be “pending or imminent.”36
32 Id. at § 1490. 33 Id. at § 1493a. 34 Id. at § 1495 n.1 (“If a Court of Law can compel the discovery, a Court of Equity will not interfere.”). 35 Id.; see also 1 John Norton Pomeroy, A Treatise on Equity Jurisprudence § 197a (Spencer W. Symons ed., 5th ed. 1941) (“It is a general rule that equity will not interfere in aid of proceedings, otherwise suitable to be aided, in other courts, which by their constitution or established modes of procedure, are themselves able to give their suitors the needed relief by compelling disclosure of facts or the production of documents.”) [hereinafter Pomeroy]. 36 Pomeroy at § 197b. 17 ii
Two decisions from the High Court of Chancery of Great Britain—both cited
in Justice Story’s treatise—provide helpful illustrations of petitions seeking a bill of
discovery, both of which identified a close connection between the bill requested and
an imminent cause of action.
In the 1785 case, Moodalay v. Morton,37 the High Court of Chancery declined
to dismiss a petition for an equitable bill of discovery. There, the petitioners claimed
to have been dispossessed of their right to tobacco supply by members of the
respondent company. Because the petitioners did not possess sufficient information
to bring a cause of action to vindicate their right, they pleaded a claim for a bill of
discovery to determine whether the proper defendants were servants acting under
the authority of the respondent company. The court denied the respondent’s motion
to dismiss, accepting the petitioners’ argument that a bill of discovery need not be
connected to an existing action at law; rather “[i]t is sufficient that a foundation for
an action has been laid, by the plaintiffs being dispossessed by the Company’s
servants.” 38
37 (1785) 28 Eng. Rep. 1245 (Ch.). 38 Id. 18 In 1822, the High Court of Chancery, in Angell v. Angell,39 long ago hailed by
our Court of Chancery as a “leading authorit[y],”40 considered the adequacy of a bill
of discovery seeking to perpetuate testimony by way of written depositions. The
plaintiff sought to preserve the testimony for use in an anticipated action at law in
which he would seek to prove that he was a rightful heir of an estate. The plaintiff’s
bill stated that (i) “in such action it would be necessary for him to prove, amongst
other things, the several facts before mentioned relating to his descent”; and (ii) “the
same could be proved by divers other persons now resident in America, and out of
the jurisdiction of the Court, but that such persons were very aged, and likely to die
before the Plaintiff could bring his action to trial, and that he would lose the benefit
of their testimony at such trial, unless their evidence was perpetuated in this
Court.”41 The plaintiff did not, however, allege “that the matter could not be made
the subject of an immediate action.”42
The Angell court acknowledged that there were circumstances where “a bill
must necessarily precede” the action at law for which the evidence is to be preserved,
such as when its purpose is to “ascertain[] facts upon which it must depend against
whom the action is to be brought[.]”43 But under the facts alleged, the plaintiff did
39 (1822) 57 Eng. Rep. 33 (Ch.). 40 Hall v. Stout, 4 Del. Ch. 269, 273 (Del. Ch. 1871). 41 Angell, 57 Eng. Rep. at 34. 42 Id. at 35. 43 Id. at 36. 19 not need the evidence to file his action at law. The want of a pending action under
such circumstances was fatal to the plaintiff’s bill, and the respondent’s demurrer
was allowed. We read Angell as standing for the proposition that, when a petitioner
for an equitable bill of discovery can plead sufficient facts in an anticipated action
at law, an equitable bill of discovery is not available to secure evidence that would
be discoverable in the anticipated action. 44
Two other cases, both postdating the modern rules of discovery and cited by
the Court of Chancery as examples of a bill of discovery supporting a preservation
order, warrant discussion. As will be seen, both cases—like Moodalay and Angell—
involved a bill of discovery that was connected to a specifically identified matter.
In Johnson v. Spartanburg County School District 7, the South Carolina Court
of Appeals reviewed a trial court’s decision temporarily enjoining a school district
from failing to maintain evidence related to an alleged sexual assault on a school
bus. 45 The court also considered whether the trial court erred by permitting the
plaintiff to conduct discovery under her claim for an equitable bill of discovery
pending a hearing on the merits of the case.
Relevant to our purposes, the plaintiff requested that
44 See also Hall, 4 Del. Ch. at 272 (holding that a party who was unable to “bring [his] title to a trial at law under immediate judicial investigation” was entitled to a bill to perpetuate testimony.). 45 2008 WL 9846826, at *2 (S.C. Ct. App. Oct. 27, 2008). 20 the School District . . . maintain, preserve, and produce certain items and information relating to the incident and to refrain from moving, removing, or modifying any such items and information. 46
The plaintiff requested this information for the purposes of determining “whether
any potential civil causes of action existed, identify[ing] all potential defendants, and
potentially proceed[ing] with any civil matters related to the incident.” 47
The court of appeals affirmed in part and reversed in part the trial court’s
decision. It first held that the trial court did not abuse its discretion in concluding
that the plaintiff would (1) likely succeed on the merits of her claim for a bill of
discovery and (2) suffer “immediate and irreparable injury by not being able to
examine the evidence or pursue a valid civil action, leaving her with no legal
remedy.”48 The court of appeals, however, held that the trial court erred by allowing
the plaintiff to proceed with discovery; for the court, that decision constituted a
premature ruling on the merits of the plaintiff’s equitable-bill-of-discovery claim.
The second case, Lewis v. Weaver,49 concerned a petitioner’s claim for a bill
of discovery that requested a preservation order and permission to conduct pre-suit
discovery. The petitioner in Lewis requested a bill of discovery relating to injuries
that his father suffered after falling from a dock. In particular, the petitioner sought
an order requiring the owner of the dock to “preserve[] the dock in its present
46 Id. at *1. 47 Id. 48 Id. at *2. 49 969 So.2d 586 (Fla. Dist. Ct. App. 2007). 21 condition long enough for an order allowing him or his agents to enter upon the
property to inspect, photograph and test the dock before it can be repaired and
changed.”50 A failure to preserve the dock, the petitioner contended, would
“seriously impair” his ability to sue for damages.51 The trial court agreed, allowing
the petitioner’s experts to inspect and test the dock in addition to permitting access
to municipal and county records relating to the dock. The dock owner sought
certiorari review.
The appellate court denied certiorari and left the trial court’s order in place,
explaining that
[u]nder the current state of [Florida] law, a pure bill of discovery should be granted if there is some reasonable basis to believe that discovery in a later damages action would be inadequate or too late to vindicate the litigant’s right to evidence.52 The court noted that the victim was “so incapacitated from the incident” that he could
not assist in determining the appropriate defendant to sue.53 For the court,
“[p]reservation and inspection of the dock in its current condition [was] essential to
identifying a factual basis for suit against specific defendant(s).” 54 So, in the
appellate court’s view, the trial court did not err.
50 Id. at 586. 51 Id. at 587. 52 Id. 53 Id. at 587–88. 54 Id. at 588. 22 The Lewis court, like the South Carolina Court of Appeals in Johnson,
concluded that the bill of discovery could support a preservation order. In both cases,
however, the courts entertained the request for a bill to preserve evidence relevant to
a specifically identified matter.
B
From the treatises and opinions discussed above, we discern that an equitable-
bill-of-discovery claim consists of three elements: (i) that the requesting party has
an interest in the discovery, (ii) that the discovery sought is material to a specific
pending or anticipated claim, and (iii) that a court of law cannot compel the
discovery—that is, there is no adequate remedy at law. 55 Here, it is uncontested
that, when one of the Manufacturers is sued for asbestos-related injuries, it has an
interest in obtaining Claims Data relevant to the plaintiff’s claims. And we do not
disturb the Court of Chancery’s inference that, at least in some cases, the
Manufacturers, when sued, will encounter difficulties in securing the information
encompassed in the Claims Data from the plaintiff or his counsel even though they
were the original source of the information. But we part with the Court of
55 This enumeration of the elements does not differ radically from the Court of Chancery’s formulation of the claim’s elements. One variation is our qualification that pending and anticipated claims must be specifically identified in the complaint or petition. We also point out that, because our decision rests on other grounds, we offer no opinion on the court’s suggestion that a petitioner is without an adequate legal remedy when the evidence sought cannot be obtained “conveniently . . . through other means.” DBMP LLC v. Delaware Claims Processing Facility, LLC, 349 A.3d 663, 689, 690 (Del. Ch. 2025). 23 Chancery’s conclusion that the Manufacturers adequately pleaded the existence of a
pending or anticipated claim.
Because the Manufacturers must concede that their complaint does not
identify a specific pending or anticipated claim, they assert that it is unnecessary to
do so. For them, it is sufficient that they allege that they “are defendants in numerous
asbestos-related personal injury tort cases around the country and a debtor in a
bankruptcy proceeding who are seeking to resolve current and future asbestos
liabilities through section 524(g) of the Bankruptcy Code, 11 U.S.C. § 524(g).”56
The Manufacturers allege even more generally that the Claims Data “is highly
relevant to tens of thousands of known asbestos-related personal injury claims and
other legal proceedings across the country.” 57 Based on these and other allegations
relating to the prevalence of asbestos-related litigation, the Court of Chancery was
satisfied that the complaint adequately pleaded the existence of a pending or
anticipated action. Implicit in the court’s conclusion was that it is unnecessary for
an equitable-bill-of-discovery petition to identify a specific pending or anticipated
56 App. to Opening Br. at A14 (Compl. ¶5). 57 Id. at A12 (Compl. ¶ 1); see also id. at A45 (Compl. ¶ 80) (“As defendants in thousands of asbestos-related personal injury cases, or as a debtor in asbestos-related bankruptcy proceedings, Plaintiffs have fundamental rights . . . to obtain information pertinent to their defenses and positions in those proceedings.”). 24 claim to which the evidence to be preserved is material. This, in our view, unduly
relaxes the standard for determining the availability of this exceptional remedy.
As discussed above, the treatises and most relevant cases support the view that
the identification of a specific pending or anticipated claim should be required. Of
course, one might plausibly argue that the reason the treatises and the caselaw appear
to limit equitable bills of discovery in this fashion is because that has been the
context in which the bill has typically been sought. Why not, the question follows,
nevertheless allow for the granting of a bill of discovery for unspecified pending and
anticipated claims? The reason, in our view, is a practical one and is, in part,
illustrated by this case. The absence of an identifiable pending or anticipated action
at law leaves the court with no gauge with which to measure the appropriate scope
of the bill. Rather than order the preservation or production of specific discoverable
evidence, the bill issued in connection with an unspecified claim will—almost of
necessity—be broader in scope than would be permissible in the action at law for
which the evidence is to be preserved or produced. Such has been the case here
where the Court of Chancery has been asked to order the preservation of the Claims
Data from hundreds of thousands of trust claimants’ files spanning multiple decades
based on unspecified pending claims and a threat of an as yet unknown number of
future claims.
25 We agree with the Court of Chancery’s observation that “[e]quity ‘has an
expansive power[] to meet new exigencies[.]’”58 Yet that power is not without
bounds. And extending the availability of an equitable bill of discovery to petitions
that do not identify a specific claim, pending or anticipated, in our view, exceeds
those bounds. Accordingly, by not identifying a specific claim and the discovery to
which the Manufacturers were entitled in relation to that claim, the complaint failed
to state a claim for which an equitable bill of discovery can be granted. Thus, the
Court of Chancery erred when it denied the Trusts motion to dismiss.59
IV
Finally, we turn briefly to the alternative question the Manufacturers present
in their answering brief:
In denying Defendants’ motion to dismiss, the Court of Chancery asked only whether Plaintiffs had adequately stated a claim for an equitable bill of discovery. In addition to affirming that result, this Court can affirm on the additional ground that Plaintiffs stated a claim for a declaratory judgment. Should it do so?60
We answer this question in the negative.
As propounded, the question and its predicate assume that we should not
remand to the Court of Chancery for consideration in the first instance of the
58 DBMP LLC, 349 A.3d at 697 (quoting Schoon v. Smith, 953 A.2d 196, 206 (Del. 2008)). 59 As with the standing issue, this conclusion renders consideration of the Trusts’ waiver argument unnecessary. 60 Answering Br. at 42. 26 Manufacturers’ claim for declaratory relief. That is just as well, given the Court of
Chancery’s implicit rejection of the Manufacturers’ declaratory-relief claim.
The underlying logic of the Court of Chancery’s decision denying the Trusts’
motion to dismiss and its certification of this interlocutory appeal is that the issuance
of an equitable bill of discovery was the only means by which the court could grant
the relief sought by the Manufacturers. 61 In the Vice Chancellor’s comments
appended to the court’s order granting the Manufacturers’ application for the
certification of this interlocutory appeal, he noted:
Per the penultimate sentence of [Supreme Court] Rule 42(b)(iii), whether to recommend an appeal via certification turns on the trial court’s own assessment of the most efficient and just schedule to resolve the case. As the trial judge tasked with offering that assessment, I believe that this case presents sufficiently novel issues of law and a sufficiently specific set of alleged facts that an early assessment from the justices would be optimal. This trial judge would not relish overseeing the case for a year or two, supervising discovery, presiding over a trial, issuing a post-trial decision, and crafting a remedy, only to find out on the appeal from the final order that the justices disagreed with the concept of the Court of Chancery intervening in the first place. 62
This statement signals to us that the Court of Chancery would view as case
dispositive a reversal of its decision that the Manufacturers adequately pleaded an
equitable-bill-of-discovery claim. We conclude therefore that a remand for
61 Indeed, the Court of Chancery observed that “[t]his is a case where the court likely will have to use its equitable powers to craft a bespoke remedy, and a simple declaratory judgment cannot do the job.” DBMP LLC, 349 A.3d at 682. 62 Order, DBMP LLC v. Delaware Claims Processing Facility, LLC, No. 2025-0404 (Del. Ch. Nov. 14, 2025), D.I. 73. 27 consideration of the Manufacturers’ declaratory-judgment claim would be a fruitless
exercise for the Manufacturers.
We also decline to affirm on the basis of that claim. The Court of Chancery
found the claim so unconvincing that it sua sponte raised a long-dormant equitable
discovery tool. And in this Court, the Manufacturers have not identified, nor can we
put our finger on, a legal theory that would justify the Court’s entry of a broad
preservation order to facilitate their defense of a multitude of unidentified pending
and anticipated claims.
V
In its order certifying this interlocutory appeal, the Court of Chancery posed
a question: does this Court “believe that the Court of Chancery should . . . be in the
business of potentially issuing relief to preserve documents for use in other litigation
. . . [?]”63 For the reasons set forth above, we answer that the court may exercise its
jurisdiction to provide such relief when the party seeking a preservation order as the
court described has an interest in discovering the documents, things, or information
at issue; those documents, things, or information are material to a specific pending
or anticipated claim; and there is no adequate remedy at law. The court may not,
however, order such relief as was requested in this case—a broad preservation order
constraining third parties—when, as here, the requesting party does not identify a
63 Id. 28 pending or imminent action at law to which the documents are relevant and
unavailable through discovery in such action or other legal proceeding.
The judgment of the Court of Chancery is reversed and remanded with
direction to enter judgment for the defendants dismissing the action.