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
Date Submitted: May 3, 2022 Date Decided: May 9, 2022
A. Thompson Bayliss, Esquire Raymond J. DiCamillo, Esquire Michael A. Barlow, Esquire Kevin M. Gallagher, Esquire Eliezer Y. Feinstein, Esquire Daniel E. Kaprow, Esquire Abrams & Bayliss LLP Caroline M. McDonough, Esquire 20 Montchanin Road, Suite 200 Richards, Layton & Finger, P.A. Wilmington, Delaware 19807 920 North King Street Wilmington, Delaware 19801 Peter J. Walsh, Jr., Esquire Matthew F. Davis, Esquire Abraham C. Schneider, Esquire Patrick A. Lockwood, Esquire Potter Anderson & Corroon LLP 1313 North Market Street, 6th Floor Wilmington, Delaware 19801
RE: In re Aerojet Rocketdyne Holdings, Inc. C.A. No. 2022-0127-LWW Dear Counsel:
This letter addresses the motion to quash and for a protective order filed by
non-party Gibson Dunn & Crutcher LLP (“GDC”). The motion concerns
subpoenas duces tecum and ad testificandum that plaintiff Warren Lichtenstein
served on GDC. For the reasons discussed below, the motion is denied with one
exception.
GDC is the longtime counsel of Aerojet Rocketdyne Holdings, Inc. (the
“Company”) and currently serves as litigation counsel for the defendants, who C.A. No. 2022-0127-LWW May 9, 2022 Page 2 of 7
comprise half of the Company’s board of directors (the “Board”). The plaintiffs—
who make up the other half of the Board—served the subpoenas on March 7, 2022
and April 14, 2022, respectively.1
On April 16, 2022, Lichtenstein’s counsel provided a proposed search
protocol for GDC’s documents.2 The protocol sought documents from two
corporate partners at GDC and from litigation partner Randy Mastro. GDC did not
produce documents in response to the subpoena duces tecum but served written
responses and objections.3 GDC also did not engage with Lichtenstein’s counsel
on the proposed search protocol.
GDC’s motion was filed on April 27, 2022. It rests, in large part, on the
assertion that the plaintiffs’ subpoenas seek privileged information.4 Similar
arguments were addressed in the court’s May 5, 2022 letter decision regarding
Lichtenstein’s motion to compel.5 The court explained that the plaintiffs are
entitled to access the Company’s privileged information because they are
incumbent Board members and not adverse to the Company. For the same reasons,
1 Dkts. 62, 117. 2 Pl.’s Opp’n to Mot. to Quash and for Protective Order (“Pl.’s Opp’n”) Ex. 18 (Dkt. 184). 3 Pl.’s Opp’n Ex. 7. 4 Mot. to Quash and for Protective Order (“Mot. to Quash”) ¶¶ 18-25 (Dkt. 161). 5 Dkt. 205. C.A. No. 2022-0127-LWW May 9, 2022 Page 3 of 7
the plaintiffs are entitled to the Company’s privileged communications with its
outside counsel at GDC.
GDC further argues that the subpoenas seek duplicative discovery that has
been or could be obtained from the defendants or the Company.6 Duplicative
requests are “forbidden when the objecting party shows that the discovery request
is fully duplicative and meant to harass the producing party.”7 Though GDC’s
production may overlap in some respects with the productions from the defendants
or the Company, I cannot conclude that the document requests are fully duplicative
or intended to harass. Search parameters can be negotiated to reduce duplication
while allowing for the discovery of relevant, admissible information.
GDC has also not shown that the subpoenas are overbroad or seek irrelevant
information.8 The scope of discovery permissible under Court of Chancery Rule
26 is “broad and far-reaching.”9 The plaintiffs are alleging that the defendants
used Company resources—including Company counsel—to advance the
6 Mot. to Quash ¶¶ 26-30. 7 Grace Bros., Ltd. v. Siena Hldgs., Inc., 2009 WL 1547821, at *1 (Del. Ch. June 2, 2009); see Hamilton P’rs v. Highland Cap. Mgmt. L.P., 2016 WL 612233, *6 (Del. Ch. Feb. 2, 2016) (finding a discovery request “neither fully duplicative nor oppressive” where it was reasonable to suspect that parties would submit different documents for the same requests and where submitting the same requests would allow the plaintiff to test for completeness and accuracy). 8 Mot. to Quash ¶¶ 31-33. 9 Cal. Pub. Emps. Ret. Sys. v. Coulter, 2004 WL 1238443, at *1 (Del. Ch. May 26, 2004). C.A. No. 2022-0127-LWW May 9, 2022 Page 4 of 7
defendants’ interests on matters over which the Board was deadlocked. Though I
express no view on the merits of that issue, the discovery sought appears to be
sufficiently relevant. Certain comprehensive requests, such as those seeking
documents related to all aspects of GDC’s representation of the Company
regardless of time period, can likewise be narrowed through an appropriate search
protocol.
In addition, GDC has not demonstrated that the discovery sought is overly
burdensome. Although search term hit reports are not necessarily required for a
party opposing discovery to demonstrate burden, some credible showing of burden
must be advanced.10 GDC’s argument seems to be that it would be burdensome for
it to produce documents given the exigencies of this case.
Circumscribed discovery lends itself to expedited litigation as a matter of
practicality. Often, that tailoring of discovery comes in the form of search
parameters (a date range, custodian list, and search terms). The search parameters
proposed by Lichtenstein include just three document custodians and, for many
requests, a date range spanning less than two months.11 But, again, GDC did not
10 See Fortis Advisors LLC v. Johnson & Johnson, 2021 WL 4314115, at *2-3 (Del. Ch. Sept. 21, 2021). 11 Pl.’s Opp’n Ex. 18. C.A. No. 2022-0127-LWW May 9, 2022 Page 5 of 7
undertake negotiations on the parameters Lichtenstein proposed before filing this
motion.
GDC makes one specific argument concerning burden: that discovery from
opposing counsel in expedited litigation is manifestly burdensome. I am not
entirely persuaded by that argument given the unique circumstances here. GDC is
not just trial counsel—it has long served as counsel to the Company and allegedly
participated in events that led to this litigation. “It is the case that when attorneys
participate in the occurrence that gives rise to or relates to the legal claims being
litigated, the information they may thus learn is generally not protected from
discovery.”12 The discovery the plaintiffs seek from the defendants’ trial counsel
is, however, a different matter.13
“Upon motion by a party or by the person from whom discovery is sought,
and for good cause shown, the Court . . . may make any order which justice
requires to protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense.”14 The court will limit discovery if it “is
unreasonably cumulative or duplicative, or is obtainable from some other source
12 Rainbow Navigation, Inc. v. Yonge, 1988 WL 13564, at *1 (Del. Ch. Feb. 11, 1988). 13 For clarity, “trial counsel” refers to the litigators at GDC representing the defendants in this lawsuit and at trial, not GDC as a whole. 14 Ct. Ch. R. 26(b). C.A. No. 2022-0127-LWW May 9, 2022 Page 6 of 7
that is more convenient, less burdensome, or less expensive.”15 “[T]he discovery
process as it might apply to trial counsel,” in particular, must be carefully
supervised by the court.16 Discovery of trial counsel may put at risk “the
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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
Date Submitted: May 3, 2022 Date Decided: May 9, 2022
A. Thompson Bayliss, Esquire Raymond J. DiCamillo, Esquire Michael A. Barlow, Esquire Kevin M. Gallagher, Esquire Eliezer Y. Feinstein, Esquire Daniel E. Kaprow, Esquire Abrams & Bayliss LLP Caroline M. McDonough, Esquire 20 Montchanin Road, Suite 200 Richards, Layton & Finger, P.A. Wilmington, Delaware 19807 920 North King Street Wilmington, Delaware 19801 Peter J. Walsh, Jr., Esquire Matthew F. Davis, Esquire Abraham C. Schneider, Esquire Patrick A. Lockwood, Esquire Potter Anderson & Corroon LLP 1313 North Market Street, 6th Floor Wilmington, Delaware 19801
RE: In re Aerojet Rocketdyne Holdings, Inc. C.A. No. 2022-0127-LWW Dear Counsel:
This letter addresses the motion to quash and for a protective order filed by
non-party Gibson Dunn & Crutcher LLP (“GDC”). The motion concerns
subpoenas duces tecum and ad testificandum that plaintiff Warren Lichtenstein
served on GDC. For the reasons discussed below, the motion is denied with one
exception.
GDC is the longtime counsel of Aerojet Rocketdyne Holdings, Inc. (the
“Company”) and currently serves as litigation counsel for the defendants, who C.A. No. 2022-0127-LWW May 9, 2022 Page 2 of 7
comprise half of the Company’s board of directors (the “Board”). The plaintiffs—
who make up the other half of the Board—served the subpoenas on March 7, 2022
and April 14, 2022, respectively.1
On April 16, 2022, Lichtenstein’s counsel provided a proposed search
protocol for GDC’s documents.2 The protocol sought documents from two
corporate partners at GDC and from litigation partner Randy Mastro. GDC did not
produce documents in response to the subpoena duces tecum but served written
responses and objections.3 GDC also did not engage with Lichtenstein’s counsel
on the proposed search protocol.
GDC’s motion was filed on April 27, 2022. It rests, in large part, on the
assertion that the plaintiffs’ subpoenas seek privileged information.4 Similar
arguments were addressed in the court’s May 5, 2022 letter decision regarding
Lichtenstein’s motion to compel.5 The court explained that the plaintiffs are
entitled to access the Company’s privileged information because they are
incumbent Board members and not adverse to the Company. For the same reasons,
1 Dkts. 62, 117. 2 Pl.’s Opp’n to Mot. to Quash and for Protective Order (“Pl.’s Opp’n”) Ex. 18 (Dkt. 184). 3 Pl.’s Opp’n Ex. 7. 4 Mot. to Quash and for Protective Order (“Mot. to Quash”) ¶¶ 18-25 (Dkt. 161). 5 Dkt. 205. C.A. No. 2022-0127-LWW May 9, 2022 Page 3 of 7
the plaintiffs are entitled to the Company’s privileged communications with its
outside counsel at GDC.
GDC further argues that the subpoenas seek duplicative discovery that has
been or could be obtained from the defendants or the Company.6 Duplicative
requests are “forbidden when the objecting party shows that the discovery request
is fully duplicative and meant to harass the producing party.”7 Though GDC’s
production may overlap in some respects with the productions from the defendants
or the Company, I cannot conclude that the document requests are fully duplicative
or intended to harass. Search parameters can be negotiated to reduce duplication
while allowing for the discovery of relevant, admissible information.
GDC has also not shown that the subpoenas are overbroad or seek irrelevant
information.8 The scope of discovery permissible under Court of Chancery Rule
26 is “broad and far-reaching.”9 The plaintiffs are alleging that the defendants
used Company resources—including Company counsel—to advance the
6 Mot. to Quash ¶¶ 26-30. 7 Grace Bros., Ltd. v. Siena Hldgs., Inc., 2009 WL 1547821, at *1 (Del. Ch. June 2, 2009); see Hamilton P’rs v. Highland Cap. Mgmt. L.P., 2016 WL 612233, *6 (Del. Ch. Feb. 2, 2016) (finding a discovery request “neither fully duplicative nor oppressive” where it was reasonable to suspect that parties would submit different documents for the same requests and where submitting the same requests would allow the plaintiff to test for completeness and accuracy). 8 Mot. to Quash ¶¶ 31-33. 9 Cal. Pub. Emps. Ret. Sys. v. Coulter, 2004 WL 1238443, at *1 (Del. Ch. May 26, 2004). C.A. No. 2022-0127-LWW May 9, 2022 Page 4 of 7
defendants’ interests on matters over which the Board was deadlocked. Though I
express no view on the merits of that issue, the discovery sought appears to be
sufficiently relevant. Certain comprehensive requests, such as those seeking
documents related to all aspects of GDC’s representation of the Company
regardless of time period, can likewise be narrowed through an appropriate search
protocol.
In addition, GDC has not demonstrated that the discovery sought is overly
burdensome. Although search term hit reports are not necessarily required for a
party opposing discovery to demonstrate burden, some credible showing of burden
must be advanced.10 GDC’s argument seems to be that it would be burdensome for
it to produce documents given the exigencies of this case.
Circumscribed discovery lends itself to expedited litigation as a matter of
practicality. Often, that tailoring of discovery comes in the form of search
parameters (a date range, custodian list, and search terms). The search parameters
proposed by Lichtenstein include just three document custodians and, for many
requests, a date range spanning less than two months.11 But, again, GDC did not
10 See Fortis Advisors LLC v. Johnson & Johnson, 2021 WL 4314115, at *2-3 (Del. Ch. Sept. 21, 2021). 11 Pl.’s Opp’n Ex. 18. C.A. No. 2022-0127-LWW May 9, 2022 Page 5 of 7
undertake negotiations on the parameters Lichtenstein proposed before filing this
motion.
GDC makes one specific argument concerning burden: that discovery from
opposing counsel in expedited litigation is manifestly burdensome. I am not
entirely persuaded by that argument given the unique circumstances here. GDC is
not just trial counsel—it has long served as counsel to the Company and allegedly
participated in events that led to this litigation. “It is the case that when attorneys
participate in the occurrence that gives rise to or relates to the legal claims being
litigated, the information they may thus learn is generally not protected from
discovery.”12 The discovery the plaintiffs seek from the defendants’ trial counsel
is, however, a different matter.13
“Upon motion by a party or by the person from whom discovery is sought,
and for good cause shown, the Court . . . may make any order which justice
requires to protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense.”14 The court will limit discovery if it “is
unreasonably cumulative or duplicative, or is obtainable from some other source
12 Rainbow Navigation, Inc. v. Yonge, 1988 WL 13564, at *1 (Del. Ch. Feb. 11, 1988). 13 For clarity, “trial counsel” refers to the litigators at GDC representing the defendants in this lawsuit and at trial, not GDC as a whole. 14 Ct. Ch. R. 26(b). C.A. No. 2022-0127-LWW May 9, 2022 Page 6 of 7
that is more convenient, less burdensome, or less expensive.”15 “[T]he discovery
process as it might apply to trial counsel,” in particular, must be carefully
supervised by the court.16 Discovery of trial counsel may put at risk “the
confidentiality of client communications,” the “prospect of possible
disqualification,” and “harassment or other improper motivation to a greater extent
than ordinarily occurs.”17
Lichtenstein asserts that he asks for this discovery primarily to understand
who authorized the retention of GDC as litigation counsel in February 2022 and
the February 3, 2022 letter from Mr. Mastro accusing the plaintiffs of
misconduct.18 The plaintiffs have other avenues to obtain this information,
including discovery that the court expects is being provided given its ruling on the
plaintiffs’ motion to compel, that do not implicate the special considerations raised
when discovery is directed to trial counsel. Those other sources of discovery are
also less burdensome. Mr. Mastro—who is named as a document custodian in
Lichtenstein’s search protocol—is the defendants’ lead trial counsel for a trial set
15 Id. 16 Rainbow Navigation, 1988 WL 13564, at *1; see also In re Oxbow Carbon LLC, Unitholder Litig., 2017 WL 2814879 (Del. Ch. June 29, 2017) (ORDER). 17 Rainbow Navigation, 1988 WL 13564, at *1. 18 Pl.’s Opp’n ¶ 27. C.A. No. 2022-0127-LWW May 9, 2022 Page 7 of 7
to begin in two weeks. Accordingly, GDC is entitled to a protective order insofar
as the subpoenas seek discovery from the defendants’ trial counsel.
With that exception, the motion is denied. The court expects the parties to
expeditiously meet and confer on an appropriate search protocol for GDC’s
production and the timing of a deposition (if any). The court encourages the
parties to endeavor to minimize unnecessary duplication with regard to documents
sought from GDC given the approaching trial. A rolling production should begin
as soon as possible and be completed promptly.
Sincerely yours,
/s/ Lori W. Will
Lori W. Will Vice Chancellor
cc: All counsel of record (by File & ServeXpress)