Special Discovery Master Brady Grants Defendants’ Motion to Compel, Finding Plaintiff’s Responses to Be Insufficient and Lacking Substance
July 13, 2017
In LCT Capital, LLC v. NGL Energy Partners LP, C.A. No. N15C-08-109-WCC-CCLD, Special Discovery Master Kevin F. Brady granted a motion by defendants NGL Energy Partners LP and NGL Energy Holdings LLC’s (collectively, “NGL”) to compel plaintiff LCT Capital, LLC (“LCT”) to supplement responses to interrogatories and revise privilege and redaction logs.
In their motion to compel, NGL argued that LCT failed to provide basic information in response to interrogatories. Specifically, NGL objected to LCT’s general reference to documents produced by LCT without identifying each document relied upon by Bates number. NGL’s motion further argued that: (1) LCT’s privilege logs were deficient because they merely contained boilerplate descriptions of the documents being withheld based on attorney-client privilege; and (2) LCT improperly redacted 33 documents. In response, LCT requested that the motion to compel be denied and that it be awarded reasonable expenses, including attorneys’ fees.
Ultimately, Special Master Brady held that: (1) most of the interrogatory responses were insufficient under Superior Court Civil Rule 33(d); (2) the privilege logs needed to be supplemented because they were vague and/or incomplete; and (3) certain redactions were improper. However, Special Master Brady denied the motion to compel for a few interrogatories he deemed overly burdensome. Because the special discovery master granted most of NGL’s motion to compel, he declined LCT’s request for expenses.
Analysis: Given the complexity of the discovery issues that can arise in CCLD cases, judges will sometimes assign special discovery masters to handle discovery in cases where such disputes become a frequent occurrence. Special Discovery Master Brady’s decision highlights the degree of detail required by Rule 33(d) in responding to interrogatories. Specifically, Delaware courts will not allow a party to use Rule 33(d) to respond to interrogatories without identifying any documents relied upon by Bates number. See, e.g., BAE Sys. Info. & Elec. Sys. Integration Inc. v. Lockheed Martin Corp., 2011 WL 2716020, at *3 (Del. Ch. June 1, 2011) (“[BAE’s] responses currently refer generally to ‘documents produced in connection with this matter’ or to ‘documents produced or to be produced in this case.’ Although Court of Chancery Rule 33(d) allows parties [to] respond to interrogatories by reference to the business records of the other party where the burden of ascertaining the answer from the records would be the same for either party, it also requires the party served to ‘specify’ the records where the answer may be obtained. Therefore, the Court will compel BAE to supplement its responses to Interrogatories 1–20 and 29–40 by identifying the documents that are responsive to each interrogatory, respectively.”); Kinexus Representative LLC v. Advent Software, Inc., 2008 WL 4379607, at *1 (Del. Ch. Sept. 22, 2008) (“This Court requires a specific designation of the documents pertaining to each interrogatory when Rule 33(d) is employed. Therefore . . . defendant must either (1) supplement their answers by specifying by Bates numbers the document or categories of documents associated with each interrogatory, or (2) specifically answer the interrogatories.”) (footnote omitted).
The decision further highlights the specificity required under Delaware law for privilege and redaction logs. See, e.g., Klig v. Deloitte, LLP, 2010 WL 3489735 at *5-6 (Del. Ch. Sept. 7, 2010) (explaining level of specificity required). In this case, LCT’s boilerplate language simply reiterated the standard for attorney-client privilege instead of giving precise assertions for why the specific documents were privileged so that NGL could determine whether to challenge the privilege asserted. Similarly, with redactions, wholesale block redactions are impermissible because a party is required to separate business issues from legal issues and may redact truly privileged information.