Litigators often have the tendency to seek similar, if not identical, information from multiple sources. As an opponent has an interest in withholding harmful information, third-party discovery may be critical to proving a claim or defense. In Hamilton Partners v. Highland Capital Management, C.A. No. 6547-VCN (Del. Ch. Feb. 2, 2016), the plaintiff appeared to take the approach of seeking similar information from both the defendant and relevant third parties. The defendant challenged this practice by opposing the plaintiff’s motions for commissions and third request for production of documents as, among other things, duplicative, cumulative and oppressive. According to the defendant, because the plaintiff’s discovery sought “largely the same information from each non-party and the third request and the motions [sought] information already sought in the first and second requests, the plaintiff’s discovery effort has become unnecessarily cumulative and ‘oppressive.’” The Delaware Court of Chancery disagreed, finding that, because the requests were not fully duplicative, they were not objectionable.
The court began its analysis by citing the standard in Court of Chancery Rule 26(b) that the court shall limit discovery that is “‘unreasonably cumulative or duplicative.’” The court further found, however, that, under relevant precedent, “objections to discovery on this basis are usually denied … unless ‘the discovery request is fully duplicative and meant to harass the producing party.’” In concluding that the plaintiff’s discovery was not duplicative or oppressive, the court noted two important considerations. First, the court found that the plaintiff “reasonably” could expect that different individuals will produce different documents responsive to the same requests. The court believed that such a “reality” defeated any fear of “fulsome overlap.” Second, the issuance of the same requests to different individuals “might allow the plaintiff ‘to test the truth, accuracy and completeness’ of extant and forthcoming production.” Third, the court found there was no indication in the record that the plaintiff’s discovery was oppressive and noted that none of the relevant third parties had objected on that basis.
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