COURT OF CHANCERY

OF THE

STATE OF DELAWARE

LORI W. WILL

VICE CHANCELLOR

LEONARD L. WILLIAMS JUSTICE CENTER

500 N. KING STREET, SUITE 11400

WILMINGTON, DELAWARE 19801-3734

Date Submitted: September 8, 2021

Date Decided: September 8, 2021

Jody C. Barillare

Morgan, Lewis & Bockius LLP

1201 North Market Street, Suite 2201

Wilmington, Delaware 19801

David H. Holloway

Shlansky Law Group, LLP

1504 N. Broom Street

Wilmington, Delaware 19806

RE: Edward Deane, et al. v. Robert Maginn, Jr.

C.A. No. 2017-0346-LWW

Dear Counsel:

I have reviewed the briefing on Defendant’s Rule 26(c) Motion for a 

Protective Order Staying Discovery Pending Resolution of the Motion to Dismiss. 

For the reasons explained below, the motion is denied.

1

Court of Chancery Rule 26(c) empowers this court to impose a stay of 

discovery.2 A stay of discovery pending a dispositive motion is not automatic but 

1

In opposing the defendant’s motion, the plaintiffs asserted a “Cross-Motion to Compel 

Discovery.” Dkt. 120. That motion was procedurally unnecessary when opposing the 

defendant’s motion alone would have sufficed. The plaintiffs’ motion did not include a 

form of proposed order and does not seem to seek relief beyond the denial of the 

defendant’s motion. Technically speaking, by declining to stay discovery, I am granting 

the relief sought by the motion to compel.

2 Ct. Ch. R. 26(c) (“Upon motion by a party . . . 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, including 1 or more of the 

following: (1) That the discovery not be had . . . .”).
C.A. No. 2017-0346-LWW

September 9, 2021

Page 2 of 7

rests within the discretion of this court.

3

 As the moving party, the defendant bears 

the burden of demonstrating that a stay is warranted.

4

The defendant asserts that a stay of discovery pending my decision on his 

Motion to Dismiss Plaintiffs’ First Amended Complaint will promote efficiency 

and prevent the unnecessary burden and expense of discovery in the event that I 

dismiss this action.5 Ordinarily, that might be an adequate basis to justify a stay of

discovery. This court often stays discovery during the pendency of a dispositive 

motion to prevent what may ultimately be unnecessary discovery.

6

A stay may not be appropriate despite a pending dispositive motion, 

however, in a number of circumstances. In In re McCrory Parent Corp., 

Chancellor Allen gave several examples of the types of “special circumstances”

that could justify the denial of a stay of discovery.

7

 They include: (1) where the 

3 Orloff v. Shulman, 2005 WL 333240, at *1 (Del. Ch. Feb. 2, 2005) (“There is no right to 

[a] stay of discovery, even where a case dispositive motion has been filed.”); In re 

Yahoo! Inc. S’holders Litig., 2008 WL 2721800, at *1 (Del. Ch. July 11, 2008).

4 Orloff, 2005 WL 333240, at *1 (citing Pensionskasse der ASCOOP v. Random Intern. 

Hldg, Ltd., 1993 WL 35977, at *1 (Del. Ch. Jan. 26, 1993)).

5 Dkt. 118.

6 See, e.g., In re KKR Fin. Hldgs. LLC S’holder Litig., 2014 WL 2090527, at *1 (Del. Ch. 

May 19, 2014) (“[A]voiding unnecessary discovery is usually sufficient justification for a 

stay pending resolution of a potentially dispositive motion.” (citing TravelCenters of Am. 

LLC v. Brog, 2008 WL 5101619, at *1 (Del. Ch. Nov. 21, 2008))). 

7 1991 WL 137145, at *1 (Del. Ch. July 3, 1991).
C.A. No. 2017-0346-LWW

September 9, 2021

Page 3 of 7

dispositive motion does not offer a “reasonable expectation” of avoiding further 

litigation; (2) where the plaintiff has sought interim relief; and (3) where the 

plaintiff will be prejudiced because “information may be unavailable later.”

8

None of those situations is present here. With respect to the first 

circumstance, I need only consider whether the motion to dismiss has the potential

to dispose of the entire case if the defendant prevails.9 That potential is obvious 

given that the motion seeks dismissal of all claims on multiple grounds. I will not, 

however, assess the merits of the defendant’s motion to dismiss in deciding the 

present motion—though the defendant makes several merits-based arguments in 

advocating for a stay. As to the other circumstances outlined in McCrory, the 

plaintiffs have not requested interim relief and there is no reason to suspect that the 

relevant discovery will become unavailable during the time that the motion to 

dismiss will be adjudicated.

8

Id. 

9 Soo Hyun Kim v. Coupang, LLC, 2021 WL 222162, at *1 (Del. Ch. Jan. 22, 2021) (“But 

whether vel non the Motion to Dismiss will be granted or denied is not the question on 

this Motion. The question, instead, is whether the Motion to Dismiss, if successful, will

avoid the need for further litigation.”).
C.A. No. 2017-0346-LWW

September 9, 2021

Page 4 of 7

But that is not the end of the inquiry. The three “special circumstances”

Chancellor Allen discussed are not an exhaustive list.10 Rather, the court must 

consider the “twin goals” of efficiency and fairness.

11

 It would be more efficient to 

stay discovery given the possibility that the defendant’s motion to dismiss will be 

case dispositive. Fairness to the plaintiffs, however, weighs against a stay.

12

 The 

unique circumstances of this case give rise to a threat of injury to the plaintiffs if 

discovery is stayed entirely and the motion to dismiss is denied. That risk of harm

outweighs the potential waste of resources that may occur if discovery takes place 

and the case is subsequently dismissed.13 In my view, the interests of justice will 

be promoted by declining to defer discovery until the motion to dismiss is 

resolved.

10 See Electra Inv. Tr. PLC v. Crews, 1999 WL 1204844, at *2 (Del. Ch. Nov. 30, 1999) 

(noting that the “loose three-part test” described in McCrory was “by no means exclusive 

or exhaustive”). 

11 McCrory, 1991 WL 137145, at *1. 

12 See Pensionskasse, 1993 WL 35977, at *1 (explaining that a stay “should not . . . be 

granted automatically but carefully only when plaintiff will not be prejudiced thereby and 

defendant may, if it prevails on its [case-dispositive] motion, be spared the expense 

involved in responding to the discovery” (quoting Schick, Inc. v. Amalgamated Clothing 

& Textile Workers Union, C.A. No. 9066, slip op. at 2 (Del. Ch. June 18, 1987))).

13 See McCrory, 1991 WL 137145, at *1 (explaining that “in each instance, the court 

must make a particularized judgment evaluating the weight that efficiency should be 

afforded . . . and the significance of any risk of injury to the plaintiff that might eventuate 

from a stay”). 
C.A. No. 2017-0346-LWW

September 9, 2021

Page 5 of 7

There are several reasons for that conclusion. First, if the court were to take 

the full amount of time afforded it to decide the defendant’s motion to dismiss and 

stay discovery during that time, the plaintiffs would have less than a month (at 

most) to conduct fact discovery. That compressed time frame could be highly 

prejudicial to the plaintiffs and contrary to the schedule the parties negotiated.

Second, the risk of prejudice to the plaintiffs is compounded by the 

defendant waiting nearly a month after filing his motion to dismiss brief (and after 

the plaintiffs served their discovery requests and the defendant served pages of 

objections) to seek a stay of discovery. In the interim, the defendant has 

effectively granted himself a discovery stay and refused to produce any 

documents.

14

 The defendant claims that it was “only after Defendant saw the 

absence of any serious opposition to dismissal” in the plaintiffs’ opposition brief 

that it “objected to discovery going forward at all.”

15 But the defendant’s views on 

the merits of the plaintiffs’ legal arguments are hardly a proper basis to refuse to 

engage in discovery.

Third, to stay discovery pending my decision on the motion to dismiss 

would risk further delay in a case where the parties have repeatedly been 

14 See Dkt. 120, Holloway Aff. ¶ 6. 

15 Dkt. 122 ¶ 7. 
C.A. No. 2017-0346-LWW

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Page 6 of 7

admonished to maintain a schedule.

16

 In ensuring that the defendant had a fair 

opportunity to move to dismiss the plaintiffs’ eleventh-hour amendment to their 

complaint, I expressed a view that the parties would need to “press ahead with 

some discovery at the same time as the motion to dismiss” and that I did not 

“envision[] holding off on discovery entirely until after I decide the motion to 

dismiss.”

17

 I see no basis to deviate from that view now. The defendant was given 

ample time to brief his motion in this non-expedited case but, to maintain the 

schedule the parties agreed to, discovery must proceed in tandem. 

Fourth, and perhaps most importantly, the defendant is not without recourse

if the plaintiffs’ discovery requests impose an undue burden. The plaintiffs’

counsel previously told this court that—should their motion to amend be granted—

they would not “seek extensive additional discovery.”

18 The plaintiffs’ counsel 

also said that several categories of their additional discovery requests sought 

documents that would also be responsive to their prior document requests.

19 The 

court expects that the plaintiffs will abide by those statements and be reasonably

16 E.g., Dkt. 76 at 17.

17 Dkt. 111 at 7, 9. 

18 Dkt. 91 at 2; see also Dkt. 100 at 9 (stating that “[discovery] would be very 

expedited”).

19 Dkt. 91 at 2.
C.A. No. 2017-0346-LWW

September 9, 2021

Page 7 of 7

targeted in negotiating the scope of discovery necessary to their recently-pleaded 

claims. If the plaintiffs overreach (by requesting documents spanning a 21-year

date range, for example) and the parties are at an impasse after appropriately 

meeting and conferring, the defendant has the right to seek a protective order. A 

wholesale stay of discovery, however, is inappropriate. 

For these reasons, I conclude that the court should exercise its discretion to 

deny the motion to stay. Discovery will proceed pursuant to the June 24, 2021 

scheduling order. Given this ruling, argument on the motion to stay is

unnecessary. The hearing scheduled for September 9, 2021 will proceed only on 

the motion to dismiss. 

Sincerely yours,

/s/ Lori W. Will

Lori W. Will

Vice Chancellor

LWW/dmh