COURT OF CHANCERY

OF THE

STATE OF DELAWARE

MORGAN T. ZURN

VICE CHANCELLOR

LEONARD L. WILLIAMS JUSTICE CENTER

500 N. KING STREET, SUITE 11400

WILMINGTON, DELAWARE 19801-3734

January 6, 2023

Kevin M. Regan, Esquire

McDermott Will & Emery LLP

1007 North Orange Street, 10th Floor

Wilmington, DE 19801

Ronald N. Brown, III, Esquire

DLA Piper LLP

1201 North Market Street, Suite 2100

Wilmington, DE 19801

RE: Matthew M. Bruckel, MD v. TAUC Holdings, LLC,

 Civil Action No. 2021-0579-MTZ

Dear Counsel:

I write to complete my final decision on this matter in response to the 

parties’ joint letter dated December 1, 2022.

1

 I conclude the plaintiff is entitled to 

documents and communications responsive to what this letter opinion defines as 

the “Outstanding Requests.” I write for the parties.

I. BACKGROUND

On June 18, 2021, Plaintiff Matthew M. Bruckel, MD served a demand (the 

“Demand”) on Defendant TAUC Holdings, LLC (“Defendant” or “TAUC”) under 

6 Del. C. § 18-305 and Section 11.1(c) of the Amended and Restated Limited 

Liability Company Agreement of TAUC Holdings, LLC (the “LLC Agreement”).

2

Plaintiff is a “Founder Member” and manager of TAUC, which is managed 

by a board of managers (the “Board”).

3

 He holds information rights under the LLC 

Agreement.4 As a Founder Member, he may designate a representative eligible 

“upon reasonable notice and during normal business hours, to inspect the books

1 Docket Item (“D.I.”) 58 [hereinafter “Dec. Ltr.”].

2

Joint Exhibit (“JX”) 4 [hereinafter “Demand”].

3 D.I. 38 [hereinafter “PTO”] at § III ¶¶ 1, 9; JX 1 [hereinafter “LLC Agr.”] §§ 1.1,

5.1(a).

4 D.I. 59 [hereinafter “Trial Tr.”] at 318; LLC Agr. § 11.1(c).
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and records of [TAUC] or any of its Operating Companies and make copies thereof

or extracts therefrom.”

5 The only restrictions on those rights are that the 

documents be “books and records of [TAUC] or any of its Operating Companies,”

that recipients abide by confidentiality covenants, and that recipients are not 

entitled to receive “information or materials the disclosure of which would 

jeopardize any applicable attorney-client privilege or would violate applicable laws 

concerning the privacy of protected personal information.”

6

Under Section 18-305(b), managers of Delaware limited liability companies 

“shall have the right to examine all of the information described in [18-305(a)] for 

a purpose reasonably related to the position of manager.”

7

 “A manager of an LLC 

possesses informational access rights that parallel those enjoyed by a director of a 

corporation.”

8

 Managers have equal rights to access to board information as their 

fellow managers.

9 A manager seeking to inspect books and records makes out a

prima facie case by showing: (i) she is a manager; (ii) she requested company 

books and records; (iii) the books and records are reasonably related to her purpose 

as a manager; (iv) her request was within the scope of information rights afforded 

5 LLC Agr. §§ 1.1, 11.1(c).

6

Id. § 11.1(c).

7 8 Del. C. § 18-305(b); see also id. § 18-305(f).

8

In re P3 Health Grp. Hldgs., LLC, 2022 WL 16548567, at *29 (Del. Ch. Oct. 31, 2022);

Obeid v. Gemini Real Est. Advisors, LLC, 2018 WL 2714784, at *2 (Del. Ch. 

June 5, 2018) (“The language in Section 18–305(b) “is tantamount to that used in 8 Del[.]

C. § 220 with respect to director requests for corporate information.’” (quoting RED Cap. 

Inv. L.P. v. RED Parent LLC, 2016 WL 612772, at *4 (Del. Ch. Feb. 11, 2016))), aff’d, 

202 A.3d 1124 (Del. 2019); Bizzari v. Suburban Waste Servs., Inc., 2016 WL 4540292, at 

*5 (Del. Ch. Aug. 30, 2016) (“[T]his Court treats Section 220, and the cases interpreting 

it, as the corporate analogue to inspection rights under Section 18–305 of the LLC Act.”

(citing NAMA Hldgs., LLC v. World Mkt. Ctr. Venture, LLC, 948 A.2d 411, 421 n.30 

(Del. Ch. July 20, 2007))); 8 Del. C. § 220(d) (“Any director shall have the right to 

examine the corporation’s stock ledger, a list of its stockholders and its other books and 

records for a purpose reasonably related to the director’s position as a director.”).

9 P3 Health Grp., 2022 WL 16548567, at *29 (internal quotation marks omitted) (quoting 

Moore Bus. Forms, Inc. v. Cordant Hldgs. Corp., 1996 WL 307444, at *5 (Del. Ch. 

June 4, 1996)).
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to her under the limited liability company agreement; and (v) her request was 

refused.

10

 Plaintiff is undisputedly a manager.

11

The Demand sought six categories of documents.

12 On June 25, Defendant 

responded to the Demand.13 TAUC provided documents responsive to the first, 

second, third, and fifth categories.14 On July 6, Plaintiff filed a Verified Complaint 

for Inspection of Books and Records seeking the same six categories of 

documents.

15

 On July 30, Defendant answered.16

On December 14, 2021, I held a one-day trial.17 Trial made clear that 

Plaintiff has fallen out of communication and favor with the four other TAUC 

managers, and had been removed as CEO. Trial also made clear that Plaintiff is 

angry and desirous of the level of information he had before he was removed as 

CEO.

18

Trial left less clear precisely what documents Plaintiff still sought under 

what categories. At the conclusion of trial, I concluded: “Dr. Bruckel is a

manager of a Delaware LLC with unfettered access . . . to everything in Section 

18-305(a) that is reasonably related to his status as a manager. He also has a 

contractual right that doesn’t have that proper-purpose restriction.”

19

 The best 

proxy for what is reasonably related to his status as a manager “is what the other

10 Id. (citing Henshaw v. Am. Cement Corp., 252 A.2d 125, 129 (Del. Ch. 1969), and

Holdgreiwe v. Nostalgia Network, Inc., 1993 WL 144604, at *3 (Del. Ch. Apr. 29, 1993), 

and 8 Del. C. §§ 18-305(f)(2), (g)).

11 PTO § III. ¶ 1.

12 Demand at TAUC0000596–97.

13 JX 6.

14 See id. at TAUC0000046–47.

15 D.I. 3 [hereinafter “Compl.”]; id. ¶ 18.

16 D.I. 9.

17 D.I. 44; Trial Tr.

18 E.g., Trial Tr. 195.

19 Id. 318.
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managers are being given and documents that reflect how the other managers meet 

and act collectively do their jobs.”

20

 I granted a partial inspection of: 

“communications establishing, preparing for, transmitting information for the 

purpose of, or documenting the weekly meetings of the four favored managers that 

have been occurring by Zoom;” “all materials transmitted in such communications 

and/or shares at the Zoom meetings,” documents and communications reflecting

“any action taken over email by those four managers in a managerial capacity not 

over Zoom,” and “any communications or emails following up on or executing on

tasks or decisions that were assigned or taken at those meetings.”

21

From there, to focus the parties on the task at hand, I instructed Plaintiff to

review Defendant’s production, identify responsive documents by Demand 

category and JX or Bates number, and evaluate what he thought was missing and 

why he thought it existed.

22 I instructed Defendant to review its production,

identify responsive documents by Demand category and JX or Bates number, and 

if there are gaps left by nonexistent documents, certify that those documents do not 

exist.23 I refer to this joint document as a “Crib Sheet.”

In February 2022, the parties filed a volley of letters regarding Plaintiff’s 

“request[] [for] assistance with post-trial document production.”

24

 On March 11, I 

held the first post-trial status conference.25 I reiterated my instructions to the 

parties and invited Plaintiff to conduct a Rule 30(b)(6) deposition “solely” on “how 

do the [TAUC] managers do their managing, and what documents reflect the 

managing that the managers do.”

26

 In late June, Plaintiff deposed a TAUC 

representative.27 On July 29, Plaintiff filed letters requesting a second post-trial 

20 Id. 319.

21 Id. 319–20.

22 Id. 321.

23 Id.

24 D.I. 47; D.I. 48; D.I. 49.

25 D.I. 50; D.I. 51 [hereinafter “Mar. Hr’g Tr.”].

26 Mar. Hr’g Tr. 6–7, 13–15.

27 D.I. 52 (noticing a Rule 30(b)(6) deposition for June 23, 2022); D.I. 53, Ex. A

[hereinafter “Crib Sheet”] at 9–10 (dating the Rule 30(b)(6) deposition as both June 23 
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teleconference and attaching the parties’ attempt at the requested Crib Sheet.

28

 On

November 1, I held a second post-trial teleconference where I gave additional, and 

category-specific, guidance to the parties, narrowing the potential universe of

outstanding documents (the “November Status Conference”).

29

 I asked the parties, 

should they need further assistance, to submit a joint letter with each side’s 

position on the outstanding issues.

30

 On December 1, the parties filed such a letter

(the “December 1 Letter”).

31

As the December 1 Letter confirms, the parties do not dispute that Defendant

has declined to produce all of the documents and communications Plaintiff seeks.32 

The remaining question before the Court is one of scope: the parties dispute

whether the outstanding documents and communications Plaintiff has requested are 

TAUC books and records to which Plaintiff is entitled.

Of the six initial categories of requested books and records, only three 

remain:

33

 

and June 27, 2022). This letter will refer to the parties’ cites to that deposition transcript 

as “TAUC Tr.”

28 D.I. 53; Crib Sheet; D.I. 54.

29 D.I. 56; D.I. 57 [hereinafter “Nov. Hr’g Tr.”] at 12–16.

30 Nov. Hr’g Tr. 16.

31 Dec. Ltr.

32 Id.

33 Trial Tr. 86–87 (“Q. For instance, Item No. 1 says, ‘A current list of the name and last 

known business, residence or mailing address of each member and manager of TAUC.’ 

You’ve received that. Correct? A. Yes.”); Nov. Hr’g Tr. 12 (“On Request No. 2, it 

seems to me that everything that I can tell from this crib sheet that exists has been given. 

And so it seems to me that that is the end of that.”); id. 15 (finding the alleged 

outstanding documents under Category 6 are outside of the scope of this proceeding).
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3. Copies of notices, minutes, consents, and other material that 

TAUC has provided to its members and managers on or since 

February 12, 2021, including but not limited to any documents 

provided to any manager in advance of or in connection with any 

board meeting or board business;

4. Any communications between or among TAUC Chairman Ira 

Moreland and any manager(s) regarding any board meeting or 

decision requiring board approval on or since February 12, 2021;

[and]

5. All records and transcripts of any board meeting on or since 

February 12, 2021 . . . .

34

Of the remaining categories, the requested documents (the “Outstanding 

Requests”) can be summarized as follows:

a. All documents (notices, minutes, consents, records, transcripts, and 

other material) associated with formal or informal Board activities, 

meetings, or business, including the “weekly group updates”;

b. All contemporaneous Board communications regarding the bolt-on 

acquisition;

c. All non-privileged communications from February 12, 2021 to 

date, sent or received by TAUC Chairman Ira Moreland or any 

other manager of the Board (other than Dr. Bruckel) relating to 

TAUC business; and

d. Any unproduced communications relating to TAUC management 

meetings, formal or informal.

35

34 Demand at TAUC0000597; Nov. Hr’g Tr. 13–15. The Complaint requested only 

documents dating as far back as April 2021. Compl. ¶¶ 29, 38.

35 See Nov. Hr’g Tr. 12–15; Crib Sheet at 10–11, 14–15; Dec. Ltr., Ex. A.
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II. ANALYSIS

A. Substantive Scope: Plaintiff Is Entitled To Informal Board 

Materials.

In considering what constitutes company books and records to which a 

manager is entitled, the manner in which managers conduct business is important. 

If the managers conduct business only formally, those formal documents constitute 

the books and records that should be produced. If the managers conduct business

informally, those informal documents are books and records, and a manager is 

entitled to them.

36

 “The existence of formal Board minutes does not eliminate the 

possibility that informal [B]oard deliberations occurred via email communications 

among the Board members in advance of the formal Board meetings.”

37

 Defendant 

has represented, but not yet certified, that it produced all formal Board materials 

36 Chammas v. Navlink, Inc., 2016 WL 767714, at *6–8 (Del. Ch. Feb. 1, 2016); see 

Schnatter v. Papa John’s Int’l, Inc., 2019 WL 194634, at *15–16 (Del. Ch. 

Jan. 15, 2019), abrogated on other grounds by Tiger v. Boast Apparel, Inc., 214 A3d 933 

(Del. 2019); Lebanon Cnty. Empls.’ Ret. Fund v. AmerisourceBergen Corp., 2020 WL 

132752, at *24–25 (Del. Ch. Jan. 13, 2020), aff’d, 243 A.3d 417 (Del. 2020). Chammas

is factually similar to this case, in which Plaintiff asserts the other managers are freezing 

him out and conducting business in secret. As in Chammas, I have concluded that the 

secret nature of communications does not, alone, make them books and records that 

should be produced to Plaintiff. 2016 WL 767714, at *6.

37 Alexandria Venture Invs., LLC v. Verseau Therapeutics, Inc., 2020 WL 7422068, at 

*12 (Del. Ch. Dec. 18, 2020).
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requested.38 If that is true, the Outstanding Requests are for informal Board 

materials.

39

Plaintiff has made a proper showing that the informal Board materials he 

seeks are company books and records, reasonably related to his role as manager, 

and “likely exist in the form of electronic mail.”

40

 First, Plaintiff asserts TAUC 

has only held four formal Board meetings since June 2021, and Defendant has 

denied that unproduced formal Board materials exist.41 Second, while neither 

party submitted the deposition transcript to the Court, Plaintiff has represented 

Defendant’s corporate representative Board Chair Ira Moreland testified that,

following the Court’s ruling at trial, Defendant’s managers stopped meeting as an 

entire group, but instead began holding “weekly group update[s]” in which the 

CEO and managers, to the exclusion of Plaintiff, would “rotate in” to discuss 

TAUC business.42 The partial Board met upwards of sixty times between the

38 Trial Tr. 321–22 (“As to the company, I would like for Topics 2 through 6—again, this 

can be by bullet point—what you have given to the plaintiff and what has been requested 

that does not exist. And by certifying that something does not exist, you are certifying 

that you have looked for it. And that is something that I take seriously.”); Nov. Hr’g 

Tr. 15 (“And to the extent that TAUC has said no additional documents exist under 

penalty of perjury and under an affidavit or document that’s been signed by counsel, I 

will accept that representation at this juncture.”).

39 E.g., AmerisourceBergen, 2020 WL 132752, at *25 (“Informal Board Materials 

generally will include communications between directors and the corporation’s officers 

and senior employees, such as information distributed to the directors outside of formal 

channels, in between formal meetings, or in connection with other types of board 

gatherings. Informal Board Materials also may include emails and other types of 

communication sent among the directors themselves, even if the directors used noncorporate accounts.” (citations omitted)).

40 KT4 P’rs LLC v. Palantir Techs. Inc., 203 A.3d 738, 755–56 (Del. 2019). As 

explained in the November Status Conference, Plaintiff failed to make the requisite 

showing that he is entitled to text messages. Nov. Hr’g Tr. 15.

41 Crib Sheet at 10 (citing TAUC Tr. 18–19).

42 Id. at 10 (“To circumvent the Court’s [trial] ruling while continuing to conduct 

informal meetings, TAUC now ensures that [non-Bruckel] managers ‘rotate in’ so not all 

managers are present at a given meeting, as is now the practice with respect to TAUC’s 

‘weekly group update’ attended by Dr. Dinkel, the CEO, Mr. Moreland and other rotating 
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December 14, 2021 trial and the June 2022 30(b)(6) deposition.43 In its 

submissions to the Court, Defendant has not disputed the existence or frequency of

these post-trial “weekly group update[s].” Plaintiff has demonstrated TAUC’s 

Board informally conducted or conducts corporate business, that managers acted as 

managers in settings other than Board meetings with all managers present, and that 

related emails likely exist.

44

As to Outstanding Request (a) for documents associated with Board 

activities, Defendant averred, “the informal meetings were just that, and generally

no documents were reviewed at such meetings.”

45

 From there, Defendant states, 

“[t]o the extent documents were ever circulated with respect to informal meetings, 

those were produced in the January 25th production.”

46

 This only addresses 

Outstanding Request (a) through January 25 at the latest. Defendant must produce 

any and all such documents through the present, and certify it has done so.

As to the communications requested in Outstanding Requests (b), (c), and

(d), Defendant’s December 1 Letter carefully claims it produced manager-level 

communications, including emails between a subset of managers about informal 

Board meetings.47 But Defendant does not specifically address whether it has 

produced documents responsive to Outstanding Requests (b), (c), and (d), 

including after January 25, and has not certified that its production is complete.48

Plaintiff is entitled to non-privileged communications responsive to the 

Outstanding Requests to or by a manager communicating in his capacity as a 

manager relating to TAUC business, TAUC management meetings (formal or 

informal), or the bolt-on acquisition.

managers, excluding Dr. Bruckel.” (citing TAUC Tr. 39:10–23)); see also id. (citing 

TAUC Tr. 18–19, 39); Dec. Ltr. at 2.

43 Crib Sheet at 8–10, 14 (citing TAUC Tr. 18–20, 39).

44 Nov. Hr’g Tr. at 13.

45 Crib Sheet at 10–11.

46 Id.

47 Dec. Ltr. at 5.

48 See id.
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B. Temporal Scope: Defendant Has An Ongoing Duty To

Provide The Same Materials To All Managers.

The December 1 Letter reflects a disagreement as to the temporal scope of 

Defendant’s production obligations. Remarkably, Defendant takes the position 

that it does not owe Plaintiff any documents dated after the trial in this matter, and 

seeks a “final order stating that production is complete.”

49

 This position ignores 

Plaintiff’s ongoing statutory inspection rights as a manager and contractual

inspection rights as a Founder Member.

As long as Plaintiff is a TAUC manager, Defendant has an ongoing statutory 

obligation to produce to Plaintiff all books and records reasonably related to his 

status as a manager. “Unlike a stockholder, a [manager] is not limited to 

information that is necessary and essential to a proper purpose. A [manager]’s 

right of access is ‘essentially unfettered in nature.’”

50

 Managers are fiduciaries, 

and in order to meet their obligations as such, they must have access to the 

company’s books and records; indeed, they “often ha[ve] a duty to consult them.”

51

 

While limited liability company managers’ fiduciary duties may be limited by the 

operating agreement,52 they are not limited to the pendency of a books and records

action. As long as a sitting manager owes fiduciary duties, she is entitled to 

receive whatever the other managers are given.53 Accordingly, companies have an

ongoing obligation to provide managers equal access to books and records related 

to their status as a manager. In addition and unrelated to his position as a manager, 

49 Id. at 6.

50 Obeid, 2018 WL 2714784, at *4 (quoting Kalisman v. Friedman, 2013 WL 1668205, 

at *3 (Del. Ch. Apr. 17, 2013), and citing Intrieri v. Avatex Corp., 1998 WL 326608, at 

*1 (Del. Ch. June 12, 1998)).

51 Id. (quoting Henshaw, 252 A.2d at 128).

52 E.g. Auriga Cap. Corp. v. Gatz Props., 40 A.3d 839, 849 (Del. Ch. 2012) (“But the

[Delaware Limited Liability Company] Act lets contracting parties modify or even 

eliminate any equitable fiduciary duties, a more expansive constriction than is allowed in 

the case of corporations.” (citations omitted)), aff’d, 59 A.3d 1206 (Del. 2012).

53 P3 Health Grp., 2022 WL 16548567, at *29 (quoting Intrieri, 1998 WL 326608, at 

*1).
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Plaintiff holds an omnipresent contractual inspection right that is not conditioned

on the pendency of a books and records action.

Given the facts here and Defendant’s apparent willingness to change the way 

that managers meet to evade its production responsibilities, I will endeavor to be

very clear. Defendant must provide all formal Board materials to all of its 

managers, and to the extent Defendant continues to conduct business informally, it 

must provide all informal Board materials to all of its managers. Defendant also 

has an obligation to permit Plaintiff to inspect all TAUC books and records. 

Should Defendant violate either obligation, Plaintiff may bring a contempt motion.

C. Fee Shifting

While the so-called American Rule dictates that each party is responsible for 

its own legal fees, this Court retains discretion to shift fees for bad faith conduct 

“to deter abusive litigation and protect the integrity of the judicial process.”54 In 

Pettry v. Gilead Sciences, Inc., this Court granted the Section 220 plaintiffs leave

to move for fee-shifting where the defendant “exemplified the trend of overly 

aggressive litigation strategies by blocking legitimate discovery, misrepresenting 

the record, and taking positions for no apparent purpose other than obstructing the 

exercise of Plaintiff’s statutory rights” to books and records.55

Plaintiff’s statutory rights to information, as a manager, are “essentially 

unfettered in nature.”

56

 And the LLC Agreement affords him unbounded 

contractual rights as a Founding Member to nonprivileged books and records.57 In

spite of these rights, Defendant has not been forthcoming with its production. Its 

defenses at trial bordered on specious: maligning Plaintiff’s purpose for seeking 

documents when that is not a requirement under Section 18-305 or the LLC 

Agreement; maligning the format of his demand letter and demanding a power of 

54 Montgomery Cellular Hldg. Co. v. Dobler, 880 A.2d 206, 227 (Del. 2005) (quoting 

Johnston v. Arbitrium (Cayman Islands) Handels AG, 720 A.2d 542, 546 (Del. 1998)).

55 Pettry v. Gilead Scis., Inc., 2020 WL 6870461, at *30 (Del. Ch. Nov. 24, 2020).

56 Kalisman, 2013 WL 1668205, at *3 (quoting Schoon v. Troy Corp., 2006 WL 

1851481, at *1 n.8 (Del. Ch. June 27, 2006)).

57 LLC Agr. § 11.1(c).
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attorney; and feigning ambiguity in Plaintiff’s document requests. Nor has 

Defendant been forthcoming with information about how the managers conduct 

business or what documents exist.

58

 Defendant has reportedly gone so far as to 

change how its managers conduct business to duck the Court’s suggested 

parameters for identifying books and records that had to be produced.

59

 And 

Defendant has taken an astonishing position that it need only produce books and 

records through trial in this matter, even though Plaintiff’s inspection rights are 

ongoing.

60

 It has requested a final order “stating that production is complete,”

61

while ignoring this Court’s repeated instructions that Defendant certify it has 

complied with its production obligations.

62

 Defendant’s behavior has obstructed 

Plaintiff’s statutory and contractual rights.

Fee shifting may be appropriate here. Accordingly, this letter opinion 

represents a rule to show cause as to why fees should not be shifted to Defendant 

in this matter. Defendant should provide a written submission within twenty days

of this letter opinion, and Plaintiff can respond. Alternatively, if the parties can 

resolve this matter privately, they should submit a stipulation of dismissal.

III. CONCLUSION

For the foregoing reasons, Plaintiff is entitled to the books and records he 

seeks in the Outstanding Requests. IT IS SO ORDERED. 

Sincerely,

/s/ Morgan T. Zurn 

Vice Chancellor

58 E.g., Trial Tr. 292. TAUC’s pretrial brief asserted it could not produce documents that 

do not exist, but identified only one specific type of nonexistent document. D.I. 34 at 28.

59 Supra note 42.

60 Dec. Ltr. at 5 (“Finally, there is no basis, almost a year after trial, for Plaintiff to 

request to expand the time period at issue by nearly twelve months.” (emphasis omitted)).

61 Id.at 6.

62 Supra note 38.
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