Did These Emails About Discovery Materials Violate a Confidentiality Order?

22 Oct 2014

Mitchell Lane Publishers, Inc. v. Rasemas, C.A.No.9144-VCN (Del.Ch. Sept. 26, 2014) is a Delaware Chancery Court case between book publishers regarding whether certain emails sent after electronic discovery was produced violated the Court’s Confidentiality Order. Defendant contended Plaintiff violated this Order when she sent three email communications to third-parties after receiving the defense production.

The summary of the emails to third-parties which were in contention are as follows. (The actual emails printed in the Order are a little longer, but these are the pertinent parts):

  1. “We are in discovery now and all documentation…has been misappropriated…”
  2. “We now have proof that [Defendant’s books] began life from [Plaintiff’s] design template…I wanted to give you an update on the case.”
  3. An email to an Author: “I just learned that [Defendant] is planning to release a book about Lorde this year…I would not want to put your book [on the same topic] in print right now…”

The Chancery Court found that the first email was sent before the Confidentiality Order was entered. Plaintiff contended that the second email, written after the Order was entered, was not based on the actual document production, but by her employee’s verbal summary of the production. The Court found this email did not establish clear and convincing evidence of a violation of the Order.

The Court then found the third email, about Defendant’s book release, was a technical violation of the Confidentiality Order. Defendant’s book release may have been proprietary information, but at the time of the Order, it was public knowledge on the internet that the book was forthcoming. The Court found that this technical violation was not part of any pattern of non-compliance; it was simply an explanation to the third-party Author of why Plaintiff would not be publishing the book.

In conclusion, the court found no real injury due to the one technical violation, and denied Defendant’s Motion for Contempt and Sanctions.

ILS – Plaintiff eDiscovery Experts

Did you know? The DE Court of Chancery was created in 1792; contradicting the American trend of moving away from separate courts of equity.