Opinion
Civil Action No. 17686.
February 6, 2001.
Charles F. Richards, Jr., Daniel A. Dreisbach, Lisa A. Schmidt, Thad J. Bracegirdle, Richards, Layton Finger, Wilmington, DE.
James D. Shomper, DuPont Legal, Wilmington, DE.
Michael D. Goldman, Donald J. Wolfe, Jr., Gregory A. Inskip, Richard L. Horwitz, Arthur L. Dent, Potter Anderson Corroon LLP, Wilmington, Delaware.
Dear Counsel:
This is my decision on the parties' motions to compel production of documents in the above-captioned case. For the reasons stated below, I grant both parties' motions subject to the limitations and conditions discussed below.
DuPont asks this Court to compel Conoco to produce documents in three categories: (1) all documents relating to the Separation Agreement; (2) all documents reflecting any communication between Conoco and Baker Botts LLP ("Baker Boits") concerning Baker Botts' role in advising Conoco on either the Tax Sharing Agreement or the Separation Agreement; and (3) all documents relevant to DuPont's requests, including those dated after November 30, 1998. Conoco asks this Court to compel production of certain documents for which DuPont has claimed attorney-client privilege. Conoco also seeks to compel production of Dean Shulman of Skadden, Arps, Slate, Meager Flom LLP ("Skadden") for deposition immediately. I will discuss each motion in turn.
In its motion, DuPont first seeks production of all documents relating to the Separation Agreement. DuPont has since agreed "to strictly limit production to documents bearing on the nature and extent of the representation of Conoco by Baker Botts (and others) in connection with the Separation Agreement and the principal related agreements on which Conoco sought the advice of outside counsel." As Conoco rightly points out, DuPont's initial request was quite broad, considering that the Separation Agreement is a massive document to which there are over twenty-five principal related agreements. DuPont, however, has since presented a sufficiently narrow request by limiting the documents requested to those bearing on the nature and extent of the representation of Conoco by Baker Botts. DuPont's proposed limitation also limits discovery documents relating to the Separation Agreement and the principle related agreements, ignoring the more than fifty other agreements related to the separation which are not classified as principal related agreements.
DuPont's Reply Br. in Support of Its Mot. to Compel and Answer Br. in Opp'n to Conoco's Mot. to Compel, at 6.
Conoco also argues that producing these documents is not only burdensome, but also irrelevant because the terms of the Tax Sharing Agreement override any terms in the Separation Agreement and also because the fundamental factual dispute centers on Skadden's possible representation of Conoco in the Tax Sharing Agreement, not the Separation Agreement. While it is true that the key factual disagreement concerns Skadden's legal representation in relation only to the Tax Sharing Agreement, the role Baker Botts played directly with regard to both the Separation Agreement as well as the Tax Sharing Agreement relates to this ultimate issue. Specifically, DuPont intcnds to argue at trial that Conoco's belief that Skadden represented it in the preparation of the Tax Sharing Agreement was unreasonable in light of the particular facts and circumstances "including Baker Botts' persuasive representation of Conoco in matters relating to the separation of DuPont and Conoco." DuPont certainly has the right to make this argument and to discover documents in support of it. Moreover, the fact that the Tax Sharing Agreement may "trump" the Separation Agreement has no bearing on this inquiry. For these reasons, I grant DuPont's motion to compel discovery of documents related to the Separation Agreement subject to the limitation stated above.
Id. at 1.
DuPont next secks production of all documents reflecting any communication between Conoco and Baker Botts concerning Baker Botts' role in advising Conoco on the Tax Sharing Agreement, as well as the Separation Agreement. Conoco objected to this request on grounds of privilege. Delaware law recognizes that attorney-client privilege may be deemed waived in several circumstances. One of these is when a party injects an issue into the litigation, "the truthful resolution of which requires an examination of confidential communications." Conoco argues that "DuPont has not established that confidential communications between Conoco and Baker Botts have been placed at issue." I disagree. Conoco began this litigation by placing into issue its assertion that it was not represented by Baker Botts, but rather by Skadden, in the preparation of the Tax Sharing Agreement. DuPont, taking the opposite position, came to this Court seeking declaratory relief on that same question. Clearly, the roles of both Baker Botts and Skadden have been put into issue by both parties — Conoco when it began this litigation in Texas and DuPont when it requested relief from this Court. Conoco notes that "[s]uch waivers of attorney-client privilege are rooted in the rationale of fairness to the opposing party and discouraging the use of privilege as a litigation weapon." I agree and conclude that, in the unusual circumstances of this case, it is only fair for DuPont to be able to discover Baker Botts documents and, likewise, for Conoco to be able to discover documents of Skadden for which DuPont claims privilege. For these reasons, I grant DuPont's motion to compel all documents reflecting any communication between Conoco and Baker Botts concerning Baker Botts' role in advising Conoco on the Tax Sharing Agreement, as well as the Separation Agreement.
Fitzgerald v. Cantor, Del. Ch., C.A. No. 16297, Steele, V.C. (Jan. 28, 1999), slip op. at 4.
Conoco's Answer to DuPout's Mot. to Compel, at 10-11.
Id. at 10 (interpreting Tackett v. State Farm Cas. Ins. Co., Del. Supr., 653 A.2d 254, 259 (1995)).
Finally, DuPont seeks all documents postdating November 30, 1998. Conoco asserts that all documents postdating November 30, 1998, the date when the conflict arose between DuPont and Conoco, are privileged under the work product doctrine and also irrelevant. The decision whether a document is protected by the attorney work product doctrine is made by this Court on a document-by-document basis and not on the basis of an arbitrary date restriction. Although the relationship between the parties certainly changed on November 30, 1998, that fact should not effectively immunize all documents produced by Conoco after that date. Parts of those documents that may be legitimately claimed as substantive work product will be protected as privileged. Thus, unless the otherwise responsive document wholly constitutes work product, it shall be produced; any portions that do constitute work product may be redacted. If Conoco is unsure whether a document can or has properly been redacted, it shall submit that document to this Court for in camera review. Thus, DuPont's motion to compel documents postdating November 30, 1998, is granted subject to the conditions described above.
See. e.g., Frank v. Engle, Del. Ch., C.A. No. 13323 13284, Steele, V.C. (March 30, 1998), slip op. at 4 ("As to defendants' argument that the discovery should be restricted to before April 13, 1992, I have already explained why this State's liberal discovery rules permit discovery of materials rcasonably likely to relate to the subject matter in dispute, even if the materials were created after the filing of the complaint.")
With regard to Conoco's motion to compel, I grant its motion with regard to the Skadden documents for which DuPont is claiming privilege for the reasons I discussed above in response to DuPont's similar motion seeking documents of Baker Botts. The issue of Skadden's representation was certainly raised by DuPont when it came to this Court seeking a declaratory judgment that Skadden did not represent Conoco in the preparation of the Tax Sharing Agreement. Moreover, as I discussed above, waiver of attorney-client privilege is recognized in order to facilitate fairness in litigation. Thus, it is only fair to allow Conoco to review relevant Skadden documents as I am allowing DuPont to review relevant Baker Botts documents. With regard to Conoco's request for the immediate deposition of Dean Shulman, I expect that the parties will facilitate its completion on or before February 12.
IT IS SO ORDERED.
Very truly yours, William B. Chandler III
WBCIII:meg
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