COURT OF CHANCERY OF THE STATE OF DELAWARE M ORGAN T

. Z URN V ICE C HANCELLOR L EONARD L. W ILLIAMS J USTICE C ENTER 500 N. K ING S TREET , S UITE 11400 W ILMINGTON , D ELAWARE 19801

- 3734

Jan uary 6 , 202 3
Kevin M. Regan , Esquire McDermott Will & Em ery LL P 1007 North Orange Street, 1 0t h Floor Wilmington, DE 198 01 Ronald N. Brown, III , Esquir e DLA Piper LLP 1201 North Market Street, Suite 2100 Wilmington, DE 1980 1

RE : Matthew M. Bruckel , MD v
. TAUC Holdings , LLC , Civil Action N o. 20 2 1

- 0 579

- MTZ

De ar Counsel :

I write to complete my final de cision on this matter in response to the parties ’ joint l etter d ated December 1, 2022

. 1 I conclu de the p laintiff is entitled to doc uments and communications respons ive to what this letter opinion defi ne s as the “ Outstanding Req uests. ” I write f or the parties.

I. BACKGROUND

On June 18, 2021
, P lai ntiff Matthew M. Bruckel, M D served a demand (the

“ Demand ” ) on Defe ndant TAUC Holdings, LLC ( “ Defendant ” or “ TAUC ” ) under 6 Del. C

. § 18

- 3 05 and Section 1 1

. 1( c) o f 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 u nder the LLC A gree ment. 4 As a Founder Member
, he m ay designate a representative eligible

“ up on reasonable notice and during norm al business hours, to inspect th e books

1 D ocket Item ( “ D.I. ” ) 58 [hereina f ter “ Dec. Ltr. ” ]

. 2 Joint Exhibit ( “ JX ” ) 4 [hereinafter “ Dem and ” ]

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

4 D.I . 59 [herei naf

ter “ 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 the reof or extr acts the re f

rom. ” 5 The only restriction s o n those rights are that the documents be “ books and records of [TAUC] or any of its Operating Companies, ” that recipients abide by confide ntiality covenants, and that recipients are not entitled to recei ve “ informa t ion or materi als the disc losure of which would jeopardize a ny applicable attorney

- cl ient privilege or would violate applicable laws concerning the privacy of protected personal informati on

. ” 6

Under Section 18

- 305 (b)
, managers of Delaware limited liability com pan i es

“ shall have the right to exa m ine a ll of the information described in [18

- 305(a)] for a pur pose reasonably re lated t o the pos ition o f manager. ” 7 “ A manager of an LLC possesses informational access rights that parallel those enjoyed by a director of a
co rporation. ” 8 Manager s have equ a l right s to access to board information as their fellow managers

. 9 A manager seeking to inspec t books and records makes out a prima facie case by showing : (i) she is a manag er; (ii) she requested company books and r ecor ds ; (iii) th e books and records are reasonably related to her purpose

as a man ager; (iv) her request was within th e scope of inform ation r ights affor ded

5 LLC Agr. § § 1.1, 11.1 (c)

. 6 I d. § 11.1 (c)

. 7 8 Del. C. § 18

- 305(b) ; see also id. § 18

- 305(f)

. 8 In re P3 Health Grp. H ld gs

. , LLC
, 2022 WL 16548 567, at *29 (Del. Ch. O ct. 31, 2022) ; Obeid v. Gemini Real Est. Advisors, LLC
, 2018 WL 27147 84, 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. ’ ” (qu oting RED Cap. Inv. L.P. v. RED Parent LLC , 2016 WL 612772, at *4 (Del. Ch

. Fe b. 11, 2016 )))
, aff ’ d
, 202 A.3d 1124 (Del. 2019) ; Bizzari v. Suburban Was te Servs., In c. , 2016 WL 4540292, at *5 (Del. Ch. Aug. 30, 2016) (“[T]h is Court treats Se ction 220, and the cases interpreting it, as the corporat e analogue to ins pect ion rights under Sectio n 18

– 305 of the LLC Act.” (citing NAMA Hldgs., LLC v. World Mkt. Ctr. Venture, LLC , 948 A.2d 411, 42 1 n. 30 (Del. Ch. July 20, 2007) ) ) ; 8 Del. C. § 220(d) ( “ Any director shal l have the ri ght to examine the corporation ’ s stock ledger, a list of i ts stockhold ers an d its other books and records for a purpose reasonably related to the dir e ctor ’ s position as a director. ” ).

9 P3 Health Grp.
, 2022 WL 16548567, at *2 9 (internal quotation marks omitted) (quoting Moore Bus. Forms, Inc. v. Cordant Hldgs. Corp. , 1996 WL 307 444, at *5 (Del. Ch. June 4, 1996 ) ).Matt hew M. Bruckel , MD v. TAUC Hold ings
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to her un der the limited liability company agreement ; and (v) her request was refused

. 10 Plaintiff is undis putedly a manager

. 11

The Demand sought six categories o f documen t s

. 12 On June 25, Def endant responded to the Demand. 13 TAUC provided documents responsive to the first,

sec ond, third, and fifth cate gories. 14 On July 6
, P laintiff f iled a Ver ifi ed Comp laint fo r Inspection of Books and Records seeking the same six categori e s of doc umen ts

. 15 On July 30, Defendant answ ered. 16

On December 1 4
, 2021, I held a one

- day trial. 17 Trial made c lear that Plaintiff has fallen out of communication and favor with the fo ur other TA UC managers , and had been removed a s CEO. Trial also made clear th at Pla intiff is angry and desir ous 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 ca tegories. At the conclusion of trial, I con cluded: “ Dr. Bruckel is a manage r o f a Delaware LLC with unfe ttered access

. . . to everything in Section 18

- 305(a) that i s reasonably relate d to his status as a manager. He also has a contractual right that do esn ’ t have t hat proper

- purpose restrict ion. ” 19 The best proxy for wha t is rea s onably related to his status as a manager “ is what the other

10 I d. (ci ting Henshaw v. Am. Cement Co rp. , 252 A.2d 125, 129 (Del. Ch. 1969) , an d Holdgreiwe v. No stalg ia Network, Inc. , 1993 WL 144604, at *3 (Del. Ch. Apr. 29, 1993)
, and 8 D el. C. §§ 18

- 305(f)(2), (g)).

11 PTO § I II. ¶ 1.

12 Dema nd at TAUC 0000 596

– 97

. 13 JX 6

. 14 See id. at TAUC0000046

– 47

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

. 16 D.I. 9

. 17 D.I. 44 ; Trial Tr

. 18 E.g.
, Trial Tr. 195

. 19 Id. 318.Matt hew M. Bruckel , MD v. TAUC Hold ings
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managers are being given an d document s that ref lect how the other managers meet and act collectively do their jobs

. ” 20 I granted a partial inspection of:

“ c ommunications establis hing , p reparing for, transmitting information for the purpose of, or documenting the weekly meeting s of t he fou r favored man agers that have been occurring by Zoom ; ” “ all materials transmi tted in such comm un ications and/or shares at the Zoom meetings
, ” documents and commu nications r eflecting

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

over Z o om, ” and “ any commu nications or emails follow ing up on or execu ting on tasks or decisions that were a ssigned or taken at those mee tings

. ” 21

From there, t o focus the part ies on the task at hand, I instructed Plaintiff to review Defendant ’ s production
, identify responsive documents by Demand cat eg ory and JX o r B ates number
, and eval ua te wha t he thought was missing and why he thought it exist ed

. 22 I instructed Defen dant to review its product ion
, identify responsive documents by Demand cat eg ory and JX or B ates number
, and if there are gaps left by nonexisten t doc uments, cer t ify th at th os e documents do not exist. 23 I re fer to this joint document as a “ Crib Sheet. ”

I n F ebruar y 2022, the pa rties filed a volley of letter s re garding Plaintiff ’ s

“ request [] [for] assistance with post

- trial document product ion. ” 24 On Marc h 11, I held the f

irst post

- trial status conference. 25 I reiterated my instructions to the parties and inv i ted Plaintiff to conduct a Rule 30(b)(6) deposition “ solely ” on “ how do the [TAUC] managers do their managing , and what d ocuments re flect the

m anaging tha t t he manager s do

. ” 26 In l ate June
, Plaintiff deposed a TAUC

re present ative. 27 On July 29, Plaintiff f iled letter s reque sting a secon d 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. 5 0 ; D.I. 51 [hereinafte r “ Ma r. Hr ’ g Tr. ” ]

. 26 Mar. Hr ’ g Tr. 6

– 7, 13

– 1 5

. 27 D.I. 52 (noti cing a Rule 30(b)( 6) deposition for June 23, 2022); D.I. 5 3, Ex

. A [herein after “ Crib S heet ” ] at 9

– 10 (d ating the Rule 30(b)(6) depos i ti on as both June 23Matt hew M. Bruckel , MD v. TAUC Hold ings
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tele conference and attaching the parties ’ attempt at the requested Crib Sheet

. 28 On November 1, I held a second post

- t r ial telec onference where I gave a dditional
, and category

- spec ific
, guidance to the par ties
, n arrow ing the potential universe of outstanding documents (the “ November Status Conference ” )

. 29 I asked the parties
, shou ld they nee d furthe r assis tance, to submit a jo in t l etter with each side ’ s position on the outstanding issues

. 30 On December 1, t he part ies file d such a letter (the “ D ecember 1 Letter ” )

. 31

As the Dec ember 1 Letter co nfirms, the parties do not dispute that Defendant has declined to pro duce all of the doc ument s a nd communicatio ns Plaintiff seeks. 32 The remaining question before the C o urt is one of scop e: t he parties disput e whether the outstanding docum ents and communications Plaintif f 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 , 20 22 ). This letter will refer to the parties ’ cite s to that deposi ti on t r a nscript

as “ TAUC Tr. ”

28 D.I. 53; Crib S heet ; 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 D ec. Ltr

. 32 Id.

33 Trial Tr. 86

– 87 ( “ Q

. For inst ance, I tem No

. 1 sa ys, ‘ A current list of the name and la st known busi nes s, resid en ce or maili ng address of each member and manager of TAUC. ’ You ’ ve receive d that. Cor rect? A . Yes. ” ) ; Nov. Hr ’ g Tr. 12 ( “ On Request No. 2, it seems to me that everything that I can tell from this crib s heet that exists has been given. And so it seems to me tha t t hat is the end of tha t. ” ) ; id. 15 (finding the alleged outstanding documents under Category 6 are outside of the scope of this proceeding).Matt hew M. Bruckel , MD v. TAUC Hold ings
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3. Copies of notices, minutes, consents, and other m aterial that TAUC has provided t o its me mbers and managers on or since February 12, 2021, including but not limited to a ny doc uments provided to any manager in advance of or in conne c tion with any board meeting or board business; 4. Any communications between or among TAUC Chairman Ira Moreland a nd any manage r(s) regarding any b oard meeting or decision requiring board approval on or since February 12, 2021; [and] 5. All records and transcri p ts of any board meeting on or since February 12, 2021

. . . . 34

Of the remainin g categories, the requested documents (the “ Outstanding Requests ” ) ca n be summarized as follo ws:

a. Al l d ocuments ( no tices, minutes, consents, records, transcripts
, and other material ) assoc iated with formal or in f ormal B oard activit ies, meeting s, or business
, incl uding the “weekly grou p up dates ” ; b. Al l contemporaneous B oar d co mmunications regarding the bolt

- on acquisition ;
c. All non

- privileged communicati ons from February 12, 2021 to date, sent or received by TAUC Cha i rman Ira Moreland or any other manager of the Board (other than Dr. Bruck el) relating to TAUC business; and d. Any u nproduced communications relati ng to TAUC mana gement meetings , formal or in formal

. 35

34 Demand at TAUC00 0 059 7; Nov. Hr ’ g Tr. 1 3

– 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 ; D ec. Ltr. , Ex

. A

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II. ANALYSIS

A. Substantive Scope: Plaintiff Is Entitled To Informal Boar d Materials

.
In considering what consti tutes company books and records to which a manager is entitled, the manner in which managers conduct busi ness is important

. If the managers co n duct business only formally, those formal document s constitute the books and records that should be produced. I f the managers conduct business informally, those informal documents are books and records, and a manager is enti tled to them

. 36 “The existence of formal Board minutes does not elimina te the possibility that informal [B] oard deliberations occurred via email communicati ons among the Board members in advance of the formal Board meetings. ” 37 Defendant has r e pres ented, b ut not yet certifie d, that it produced all f ormal B oard m ater ia ls

36 Cha mmas v. Navlink, Inc.
, 2016 WL 767714, at *6

– 8 (Del. C h. Feb. 1, 2016) ; see Schnatter v. Papa Joh n ’ s Int ’ l, Inc. , 2019 WL 194634, at * 15

– 16 (Del. Ch. Jan. 15, 2019)
, abrogated on other grounds by Tiger v. Boa st Apparel, Inc. , 2 14 A3d 933 (Del. 2019) ; Lebanon C

n ty. Empls.’ Ret. Fund v. A merisourceBerg en Corp.
, 2020 W L 132752, at *24

– 25 (Del. Ch . Jan. 13, 2020)
, aff ’ d , 243 A.3d 417 (Del. 2 020)

. Chammas is factually similar to this cas e, in which Plaintiff asserts the other managers are freezing him out and conducting business in secret. As in Chammas , I have c o nclude d that the secret nature of communications doe s not, alone, make them bo o ks and records that should be produced to Plain tiff. 2016 WL 767714
, at *6.

37 Alexandria Venture Invs., LLC v. Verseau The rapeutics, Inc. , 2020 WL 74220 68, at *12 (Del. Ch. De c. 18, 2020)

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request ed. 38 If that is true, t he O utstanding R equests are for i nf ormal B oard

m aterials

. 39

Plai ntiff has made a proper showing that the i nformal B oard m a t erials he seeks are co m

pany b ooks and r ecords, reasonably related to his role as manager, and “ l ikely exist in the form of electronic mail

. ” 40 First
, Plaintiff asserts T AUC has only held four formal Board meetings since June 2021 , and Defendant has d enied that unproduced formal B oard m aterial s exist. 41 Second, w hile nei ther party submitted the deposition tr anscript to the C o u rt, Plaintiff has repre sented Defendant ’ s corporate re presentative Board Chair Ira More land testified that
, following the C ourt ’ s ruling at trial, Defen dant ’ s mana g ers sto pped meeting as a n entire gr oup, but instead be g an holding “ weekly group update[s] ” in which the CEO and man agers, to the exclusion of Plai ntiff
, would “ rotate i n ” to discuss TAUC business. 42 The partial Board met upwards of sixty times between the

38 Tria l Tr. 321

– 22 ( “A s to the company, I would like for T o pics 2 th rough 6

— again , this can be by bullet point

— wh at you have given t o the plaintiff and what has been requested that does not exist. And by certifying that something does not exist, yo u are cert i fy ing that you have looked for it. A nd that is somethi n g that I take seriously. ”) ; Nov. Hr ’ g Tr. 15 ( “ And to the extent that TAU C has sa id no a d ditional documents exist under penalty of perj ury and under an affidavit or document that ’ s been sig ned by counse l, I will accept that representatio n at th is ju n ct ure

. ” )

. 39 E.g.
, AmerisourceBerge n , 2020 WL 132752, at *2 5 ( “ Informal Board Materials generally will include communic a tions between directors and the corporation ’ s officers

an d senior employees
, such as info rmation distributed to the directors outside of formal chann els, in between formal meetings, or in connection with other types of board gatherings. Informal Board Ma t erials also may include emails and other types of communi cation sent among t he directors themselves, even if the directors used non

corporate account s. ” (citations omitted))

. 40 KT4 P ’ rs LLC v. Palantir Techs. Inc. , 203 A.3 d 738, 755

– 56 (Del. 2019)

. As explained in the Novem ber S tat us Conference, P laintiff failed to make the requi site showing that he is entitled to text messages. Nov . Hr ’ g Tr. 15.

41 C rib Sheet at 10 (citing TAUC Tr. 18

– 19 )

. 42 Id. at 10 ( “ To circum vent the Court ’ s [trial] r u ling w hile continuing to conduct in formal meetings, TAUC now ensures tha t [ n on

- Bruckel] mana gers ‘ rotate in ’ so not all

mana gers are present at a giv en meeting, as i s n ow the pr acti ce with respect to TAUC ’ s

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Decembe r 14, 2021 tr ial a nd t he Jun e 2022 30(b)(6) depo sition. 43 In its

s ubm issions to the Court, Defendant has not disputed the existence or freq uency of these post

- trial “ weekly group update [s ]

. ” Plaintiff has demonstrated TAUC ’ s Board informally conducted or conducts corporate bus iness
, that managers acted as managers in settings other than B oard meetings wit h all managers present, a nd tha t rel at ed emails likely exist

. 44

A s to Outstanding Request (a) for documents associated with Board activitie s , Defendan t ave rred
, “ the informal meetings were just that, an d generally no documents were revie wed at such me etings

. ” 45 From there, Def end ant stat es , “ [t]o the extent documents were ever circulated with respect to informal meetings, those were p roduced i n the January 2 5t h prod uction. ” 46 T h is on ly addres ses Outstanding Request (a) thro ugh Jan uary 25 at the late st

. Defe ndant must produce any and all such documents through the present , and certify it has done so

. As to the communications requested in Outstan ding Requests ( b ) , (c), and ( d)
, Defendant ’ s Dece mber 1 L e tter carefully claims it produced manager

- level communications , including emails betwe en a subset of managers about i nformal B oa rd meetings. 47 But Defendant does not specifically address whether it has produced d ocuments resp onsive to Outstanding R e quests (b), (c), and (d)
, including after January 25 , and has not certified that its pr oducti on is complete. 48 Plaint iff is en titled to non

- privileged commu nications responsive t o the Outst anding Req uests to or by a man ager communic a ting in his capacity as a manager r elating to TAUC b usiness
, TAUC mana g ement meetings (formal or informal), or the b ol t

- on acquisition

.

managers, excluding Dr. Bruckel

. ” (ci t ing T AUC Tr. 39: 10

– 23) ); see also id. (citing TAUC Tr. 18

– 19 , 39 ); Dec. Ltr

. at 2

. 43 Crib S hee t 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 De c. L tr

. at 5.

48 See i d.Matt hew M. Bruckel , MD v. TAUC Hold ings
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B. T emporal S c ope: Defendant Has An O ngoing Duty To Provide T he Same Materials To All Managers

. The December 1 Letter r eflect s a disa greement as to the t emporal scope of Defe ndant ’ s production obl igations. Remarkably, Defendant takes the position that it does no t owe Plaintiff any documents dated after the trial in this matter , and seeks a “ final order stating that pr oducti on is co mplete. ” 49 This position ignores Plaintiff ’ s ongoing statutory in spection rights as a manager and contractual inspection rights as a Found er Member.
As long as Plaintiff is a TAUC manager, Defe nda nt has an ongoing sta tuto ry obligation to prod uce to Plainti ff all books and records re asonably related to his status as a manager

. “ Unlike a stockholder, a [ manager] i s not limited to information th at is necessary and essential to a proper purpose. A [manager] ’ s right of access is ‘ essential ly unfe ttered in natu re. ’ ” 50 Managers are fiducia ries
, and in order to meet their ob ligations as such, they must have ac cess to th e company ’ s books and records; indeed, they “ often ha [ ve ] a duty to cons ult them

. ” 51 While limit ed li ability com pany mana gers ’ fiduciary duties may be limited by the operating agreement, 52 they are not limi ted to th e pendency of a books and records

ac tion. A s long as a sitting manager owes fiduciary duties, she is entitled to receive whatever the other managers are given. 53 Accor dingly , c om pan ie s have an ongoing obligation to provide managers equal access to books a nd records related to their status as a ma nager

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

49 Id. a t 6.

50 Obeid
, 2018 WL 2 7 14784, at *4 ( quoting K alis man v. Friedman , 2013 WL 1668205, at *3 (Del. Ch. Apr. 17, 20 1 3) , and citing In trieri v. Avatex Corp.
, 19 98 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 Prop s

. , 4 0 A.3d 839, 849 (Del. Ch. 2012 ) ( “ But the [Delaw are Limited L iability Company] Act lets c ontracting pa r ties mo dify or even eliminate any equitable fi duciary duties, a more expa nsive constriction than is allowed in the case of corporations

. ” (cit ations om it ted))
, aff ’ d , 59 A.3d 1206 (Del. 2012)

. 53 P3 Health Grp.
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Plaintiff hold s an omni present contractual inspe ction right th at is not conditioned on the pendenc y of a book s and records action.

G iven the facts here and Defen dant ’ s apparent wil lingness to change the way that managers meet to evade its productio n responsibilities , I will endeavor to be very clear

. D efendant must provide all f orma l B oard m ater ials to all of its managers , and to the extent Defendant continues t o conduct business informally, it must provide all i nform al B oard materials to all of its managers

. Defendant also has an obligation to permit Pl aintiff to i nspect all TAUC books and records. Should De fendant violat e either obligation , Plaintiff m ay bring a contem pt moti on.

C. Fee S hifting

While the so

- called American Rule dictates that each party is responsible for its own legal fees, this Court ret ains discret ion to shift fees for bad faith conduct “to deter abusive litigation and protect the integrity of the judi cial process.” 54 In Pettry v. Gilead Sciences, Inc. , this Court grant ed the Section 220 plaintiffs leave to move for fee

- shifting where th e defen dant “ exempli fi ed the tre nd of overly aggressive litigati on strategies by blocking legitimate dis covery, misrep resenting the record, and taking positions for no app arent purpose ot her than obstructing the

exerc ise o f Pla intiff ’ s statutory rights ” to books an d r ecords. 55

Plaintiff ’ s statut ory rights to information , as a manager, a re “ essent ially unfe ttered in nat ure

. ” 56 And the L LC Agreement affords him un bounded contractual rights as a Founding Member to non privileged books and records. 57 In spite of th ese rights
, Defen dant has not been forthcoming with its production

. Its defenses at trial bordered on speci ous : 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 hi s d emand letter and demanding a power of

54 Montgomery Cellular H ld g

. Co. v. Dobler , 880 A.2d 206, 227 (Del. 2005) (quoting Johnston v. Arbitrium (Cayman Islands) Handels AG , 720 A.2d 542, 54 6 (Del. 1998) )

. 55 Pettry v. Gilead Scis., Inc.
, 2020 WL 6870461, at *3 0 (Del. Ch . Nov. 24, 2020)

. 56 Kalis man , 2013 WL 1668205, at *3 (quoting Schoo n 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 request s. Nor has Defendant been forthcomi ng with information about how the m anagers conduct busin ess or what do cuments exist

. 58 Defendant has rep ortedly gon e so far as to change how its managers conduct business to duck the C ourt ’ s suggested parameters for identifying books and recor ds that had to be produced

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

rec ords through trial in this matter
, even though Plaintiff ’ s inspection rights are ongoing

. 60 It has req uested a final order “ stating that production i s complete
, ” 61 while i gnoring this Court ’ s re p e ated instructions that Defendant ce rtify it has complied with its pro duct ion obligations

. 62 Defendant ’s behavior has obstructed Pla intiff ’s statutory and contractual rights.
Fee shifting may be appropriate here. Accord ingly, this letter opinion represents a rule to show ca use as to why fee s should not be shifted to Defenda nt i n this matter. Defendant should provide a wr itten submission within twen ty days of this letter opinion , and Plaintiff can respond

. A lternatively, if the parties can resolve thi s mat ter privately, they should su bmit a stipulation of dismissal

. III. CONCLUS ION
For the foregoing reasons, Plaintiff is en titled t o the books and records he seek s in the O utstanding Requests

. IT IS SO ORDERED.

Since r ely,

/s/ Morgan T. Z

urn

Vice Ch an cellor

58 E.g.
, Trial Tr. 292. TAUC ’ s pretr ial brief asserted it could not produce documents that do no t exist, but identified only one specific type of no nexistent document . D.I. 34 at 28.

59 Su pra note 42

. 60 Dec. Ltr. at 5 ( “ Finally, there is no basis, almost a y ear after t rial, for Plaintiff to request to ex pand the time period at issue by near ly twelve months. ” (emphasis omitted))

. 61 Id. at 6.

62 S upra note 38

.Matt hew M. Bruckel , MD v. TAUC Hold ings
, LLC
,

Civil Action No

. 20 2 1

- 0 5 79

- MTZ January 6 , 2023 Page 13 of 13

MTZ/m s

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