SUPERIOR COURT

OF THE

STATE OF DELAWARE

PAUL R. WALLACE

JUDGE

LEONARD L. WILLIAMS JUSTICE CENTER

500 N. KING STREET, SUITE 10400

WILMINGTON, DELAWARE 19801

(302) 255-0660

Submitted: June 27, 2024

Decided: June 28, 2024

David J. Baldwin, Esquire Jeffrey L. Moyer, Esquire

Peter C. McGivney, Esquire Alexandra M. Ewing, Esquire

BERGER MCDERMOTT RICHARDS, LAYTON & FINGER

1105 N. Market Street, 11th Floor One Rodney Square

Wilmington, Delaware 19801 Wilmington, Delaware 19801

Christine S. Haskett, Esquire (argued) Alex M. Gonzalez, Esquire

David A. Luttinger, Jr., Esquire Israel J. Encinosa, Esquire

Hakeem S. Rizk, Esquire Matthew D. Grosack, Esquire

Billie Mandelbaum, Esquire Manuel A. Miranda, Esquire

COVINGTON & BURLING Chael J. Clark, Esquire

415 Mission Street, Suite 5400 Anthony J. Sirven, Esquire

San Francisco, California 94105 HOLLAND & KNIGHT

701 Brickell Avenue, Suite 3300 

Miami, Florida 33131

RE: Hartree Natural Gas Storage, LLC v. Euclid Transactional, LLC, et. al

C.A. No. N22C-05-081 PRW CCLD

Parties’ Pending Discovery and Related Motions

Dear Counsel: 

This Letter Decision and Order resolves the parties’ five motions that were 

heard yesterday.

1 For the reasons set out below: 

1 The Court delivers this decision with the knowledge that the parties are fully versed in factual 

and procedural background of this case, as well as the arguments each makes on the instant dueling 

motions. It, therefore, will only touch on the specifics of those as needed here. 
Hartree Natural Gas Storage v. Euclid Transactional, et. al. 

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Hartree’s Motion to Compel Defendant Liberty’s Compliance with this 

Court’s Prior Orders and Responses to Plaintiff’s Discovery Requests

(D.I. 232) is GRANTED in part and DENIED in part;

Liberty’s Motion to Bifurcate and Stay All Discovery of Hartree’s BadFaith Claim or, in the Alternative, for a Protective Order Against 

“Tackett” Discovery (D.I. 233) is DENIED;

Liberty’s Motion for Leave to Serve Requests for Production (D.I. 234) 

is GRANTED;

Liberty’s Motion to Compel Plaintiff’s Responses to Defendant’s 

Second Request for Production (D.I. 235) is DENIED; and,

Liberty’s Motion to Compel Plaintiff’s Responses to Defendant’s 

Discovery Requests (D.I. 236) is DENIED.

I. BRIEF OVERVIEW

A. THE PARTIES

Plaintiff Hartree Natural Gas Storage, LLC is a Delaware limited liability 

company that operates out of Texas and is the named insured on the insurance 

policies at issue in this action. 2

Defendant Liberty Surplus Insurance Corporation is a New Hampshire 

corporation that operates out of Massachusetts.3 Defendant AIG Specialty Insurance 

Company (collectively with Liberty, the “Insurers”) is an Illinois corporation with 

its principal place of business in New York.4

2 Second Amended Complaint (“Compl.”) ¶ 8 (D.I. 212).

3

Id. ¶ 9. Liberty is the first layer excess insurer.

4 Compl. ¶ 10. AIG is the second-layer excess insurer. Although both Liberty and AIG are the 

Insurers in this action, these motions only involve Liberty, not AIG.
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Former defendants include Euclid Transactional, LLC,5 North American 

Capacity Insurance Company, Aspen Specialty Insurance Company, General 

Security Indemnity Company of Arizona, and Steadfast Insurance Company.6In 

October 2023, the Court dismissed each of these defendants from this action.7

B. FACTUAL BACKGROUND

In June 2021, Hartree entered into the Membership Interest Purchase 

Agreement (“MIPA”) with PAA Natural Gas Storage, L.P., in part for the acquisition 

of the Pine Prairie Energy Center.8 In connection with the MIPA, Hartree purchased 

buyer-side representations and warranties insurance policies for the period of June 

2021 to August 2024 from the Insurers.9 One such representation and warranty 

regarded the amount of Base Gas at Pine Prairie at the time of Hartree’s acquisition 

of the facility.10

After Hartree took control of Pine Prairie, it became aware of a divergence 

between NGI and Hysys measurements of Base Gas at the facility.11 Hartree notified 

the Insurers, seeking confirmation that its losses would be covered.12 The Insurers 

denied coverage.13

5 Euclid Transactional is sometimes referred to in this litigation as the “Underwriting 

Representative,” and is referred to as such here.

6 Compl. ¶ 1. These now-dismissed defendants were the primary insurers. 

7 D.I. 174.

8

Id. ¶ 1; see Compl., Ex. A (“Hartree Policy”).

9

Id. ¶ 1.

10 Id.

11 Id. ¶ 3.

12 Id. ¶ 5.

13 Id.
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C. PROCEDURAL BACKGROUND 

Hartree initiated this lawsuit in May 2022, seeking declaratory judgment 

against Euclid and the Insurers, and breach of contract against all Insurers.14 That 

complaint was amended in 2023.15 This past March, Hartree was granted leave to 

file a second amended complaint to add a bad-faith claim against Liberty.16 Shortly 

thereafter, the case was reassigned from a now-retired colleague’s docket to the 

undersigned.

Hartree’s complaint now brings three counts: declaratory judgment against 

Liberty and AIG (Count I);17 breach of contract against Liberty and AIG (Count 

II);18 and, bad faith and/or breach of the implied covenant of good faith and fair 

dealing against Liberty (Count III).19 The parties are currently engaged in discovery.

D. THE COURT’S RELEVANT PRIOR RULINGS

During the course of this litigation, the Court—through the predecessor 

judge—made two important rulings: the “November 2023 Ruling”20 and the “March 

2024 Ruling.”21 A quick discussion of both helps contextualize and resolve the 

motions now before the Court.

14 D.I. 1. Hartree also filed suit against the Seller. See Hartree Natural Gas v PAA Natural Gas 

Storage, N22C-07-073 PRW CCLD. That lawsuit will be referred to as the “Seller Litigation”

here.

15 D.I. 114.

16

 D.I. 210; see generally Compl.

17

 Compl. ¶¶ 72-78.

18

 Id. ¶¶ 79-85.

19

 Id. ¶¶ 86-94.

20 D.I. 190 (“Nov. 2023 Ruling Tr.”).

21 D.I. 220 (“March 2024 Ruling Tr.”).
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1. The November 2023 Ruling

The November 2023 Ruling resolved motions to compel filed by both Hartree 

and Liberty.22 Relevant here, Hartree had moved to compel the Insurers to produce 

documents regarding the investigation and assessment of Hartree’s claim for 

insurance coverage.23

Via transcript ruling, the predecessor judge granted Hartree’s motion in part, 

and denied it in part.24 As to Hartree’s motion to compel claim investigation 

documents, the Court “grant[ed] the motion to compel with regard to information in 

the investigation and claim's adjustment files and processes.”25

The Court clarified that, although extrinsic evidence isn’t admissible to 

demonstrate anything with regard to an unambiguous policy term, the “factual” issue 

of “whether or not commercially reasonable steps were taken to mitigate losses” is 

certainly discoverable.26 The Judge then explained that,

to the extent there is information in the claim’s files with regard to 

whether or not commercially reasonable steps were taken to mitigate 

losses, that is going to be discoverable. And that will include nonprivileged communications among Liberty or AIG employees as to 

whether or not the claim should or should not be covered.27

She continued,

when I say non-privileged . . . you can’t simply ask a lawyer to do the 

22 See D.I. 172 (Hartree’s Mot. to Compel AIG); D.I. 173 (Hartree’s Mot. to Compel Liberty); 

D.I. 178 (Liberty’s Mot. to Compel Hartree).

23 See D.I. 173.

24

 Nov. 2023 Ruling Tr. at 82.

25

 Id. at 78.

26 Id. at 77-78.

27 Id. at 78.
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job of a claim’s adjustor or something similar and then claim that the 

information is privileged. Privilege, as we all know, has to do with 

legal analysis and giving legal advice. It does not have to do with work 

that is normally done by claim’s adjustors or similar people.28

2. The March 2024 Ruling 

The March 2024 Ruling addressed Hartree’s motion for leave to file its second 

amended complaint and Liberty’s motion to sever and stay any bad-faith claim.

29

After hearing argument on both motions, the Court granted Hartree’s motion for 

leave to amend and denied Liberty’s motion to sever or stay.30

In so ruling, the Judge observed that “[t]he only possible reason to sever these 

trials is prejudice.”31 And when denying the motion to sever, she held:

I am denying the motion for severability for a couple of reasons. One 

is by the plain language of Rule 42(b). If we were to have separate 

trials, it would be duplicative witnesses, duplicative documents, 

duplicative facts. The only possible reason to sever these trials is 

prejudice. And there’s no question that bringing these claims together 

has prejudice. The question is, is it sufficient prejudice to sever.32

The Court acknowledged that “[a]nytime you bring two claims together . . . there are 

all kinds of reasons in which prejudice can arise. The question is, is it undue 

prejudice that supersedes the Rule 42(b) requirement that cases be tried together, if 

28 Id.

29 See D.I. 197 (Hartree’s Motion for Leave to File Second Amended Complaint); D.I. 200 

(Liberty’s Motion to Sever and Stay Bad-Faith Litigation).

30 March 2024 Ruling Tr. at 87.

31

 Id. at 85.

32

 Id.
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at all possible, to prevent duplication and inefficiencies.”33 The Judge then noted that 

the CCLD has consistently tried insurer coverage and bad-faith cases together: 

Counsel have confirmed my impression that there has not been 

severance of these bad faith claims, which come up on a regular basis 

in coverage cases. The coverage cases are a large portion of the cases 

that are in CCLD. And my personal experience is, and I’ve had—tried 

several of these cases and of course heard many, many more up to and 

through the summary judgment context, there is no severance that has 

been granted, and that the cases go through, and it does complicate 

evidentiary issues, no question about that, there is always going to be 

some prejudice, but it is outweighed by the need for judicial economy 

and for the efficiencies of trying all the issues in one case together at 

the same time.34

Finally, the Judge recognized that “even though there are a couple of cases that do 

say that prejudice requires severance, none of those cases are recent, and none of 

them are involved in the CCLD context.”35

E. THE PRESENT MOTIONS

There are five motions before the Court. Liberty brings four out of those five. 

First, Liberty moves to bifurcate or stay discovery on Hartree’s bad-faith claim, or 

in the alternative, for a protective order to avoid “Tackett” discovery.36 Second, 

Liberty moves for leave to serve additional Requests for Production on Hartree after 

33 March 2024 Ruling Tr. at 85-86.

34

 March 2024 Ruling Tr. at 86-87.

35 Id. at 86.

36

 See generally Defendant Liberty Surplus Insurance Corp.’s Motion to Bifurcate and Stay All 

Discovery of Plaintiff’s Bad-Faith Claim or, in the Alternative, for a Protective Order Against 

“Tackett” Discovery (“Liberty’s Mot. to Bifurcate”) (D.I. 233).
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Hartree’s second amended complaint added a bad-faith claim against it.37 Third, 

Liberty moves to compel Hartree to produce all documents and communications 

related to the 2024 Williams Sale.38 Fourth, Liberty moves to compel Hartree to 

produce unredacted documents and communications previously redacted or 

withheld, and to provide Liberty with an itemized privilege log that includes postfiling documents.39

Hartree also brings a motion to compel.40 In that motion, Hartree moves to 

compel Liberty to comply with the Court’s November 2023 and March 2024 

Rulings, to produce documents and communications between Liberty’s counsel and 

PAA or Plains, and for fees and costs incurred in bringing the motion.41

II. APPLICABLE LEGAL STANDARDS

This Court’s Civil Rule 26 governs the scope of discovery, and reads:

Parties may obtain discovery regarding any matter, not privileged, 

which is relevant to the subject matter involved in the pending action, 

whether it relates to the claim or defense of the party seeking discovery 

or to the claim or defense of any other party, including the existence, 

description, nature, custody, condition and location of any books, 

documents, or other tangible things and the identity and location of 

persons having knowledge of any discoverable matter. It is not grounds 

37 See generally Defendant Liberty Surplus Insurance Corp.’s Motion for Leave to Serve 

Requests for Production (“Liberty’s Mot. for Leave”) (D.I. 234).

38 See generally Defendant Liberty Surplus Insurance Corp.’s Motion to Compel Plaintiff’s 

Responses to Defendant’s Second Request for Production (“Liberty’s First Mot. to Compel”) (D.I. 

235).

39 See generally Defendant Liberty Surplus Insurance Corp.’s Motion to Compel Plaintiff’s 

Responses to Defendant’s Discovery Requests (“Liberty’s Second Mot. to Compel”) (D.I. 236).

40

 See generally Plaintiff’s Motion to Compel Defendant Liberty Surplus Insurance Corporation's 

Compliance with this Court’s Prior Orders and Responses to Plaintiff’s Discovery Requests 

(“Hartree’s Mot. to Compel”) (D.I. 232).

41 See generally Hartree’s Mot. to Compel.
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for objection that the information sought will be inadmissible at the trial 

if the information sought appears reasonably calculated to lead to the 

discovery of admissible evidence.42

“The purpose of discovery is to advance issue formulation, to assist in fact 

revelation, and to reduce the element of surprise at trial.”43 And the scope of Rule 

26 discovery “is broad and far-reaching.”44 Discovery, though, can be limited 

where:

(i) the discovery sought is unreasonably cumulative or duplicative, or 

is obtainable from some other source that is more convenient, less 

burdensome, or less expensive; (ii) the party seeking discovery has had 

ample opportunity by discovery in the action to obtain the information 

sought; or (iii) the discovery sought is not proportional to the needs of 

the case, considering the importance of the issues at stake in the action, 

the amount in controversy, the parties’ relative access to relevant 

information, the parties’ resources, the importance of the discovery in 

resolving the issues, and whether the burden or expense of the proposed 

discovery outweighs its likely benefit.45

III. DISCUSSION

A. HARTREE’S MOTION TO COMPEL

Hartree moves to compel Liberty to: (1) comply with this Court’s November 

2023 Ruling and March 2024 Ruling; (2) produce all communications it or its 

counsel has had with PAA or Plains regarding this lawsuit and the Seller Litigation; 

42 Del. Super. Ct. Civ. R. 26(b)(1).

43 Levy v. Stern, 1996 WL 742818, at *2 (Del. Dec. 20, 1996) (citation omitted).

44 Woodstock v. Wolf Creek Surgeons, P.A., 2017 WL 3727019, at *6 (Del. Super. Ct. Aug. 30, 

2017) (citing Levy, 1996 WL 742818, at *2 (“pretrial discovery rules are to be afforded broad and 

liberal treatment”)).

45 Del. Super. Ct. Civ. R. 26(b).
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and, (3) award Hartree its legal fees incurred in bringing this motion.46

“In evaluating a motion to compel discovery, the Court determines whether 

the discovery sought is reasonably calculated to lead to admissible, non-privileged 

evidence.”47 “The scope of permissible discovery is broad, therefore objections to 

discovery requests, in general, will not be allowed unless there have been clear 

abuses of the process which would result in great and needless expense and time 

consumption. The burden is on the objecting party to show why the requested 

information is improperly requested.”48

1. Liberty’s Compliance with the Court’s November and March Rulings

Hartree asks the Court to compel Liberty to comply with the Court’s 

November 2023 Ruling and March 2024 Ruling.49 Hartree says that the November 

2023 Ruling establishes that claim investigations materials aren’t privileged and are 

discoverable.50

The Court’s November 2023 Ruling is clear: Liberty must produce any nonprivileged documents or communications with regard to the claim’s adjustment files 

and processes.51 That includes documents or communications by lawyers in the role 

of a claim’s adjustor, investigator, or something similar.52

46

 See generally Hartree’s Mot. to Compel.

47 Hunter v. Bogia, 2015 WL 5050648, at *2 (Del. Super. Ct. July 29, 2015) (citing Del. Super. 

Ct. Civ. R. 26(b)(1) and Alberta Sec. Comm’n v. Ryckman, 2015 WL 2265473, at *9 (Del. Super. 

Ct. May 5, 2015)).

48 Prod. Res. Grp., L.L.C. v. NCT Grp., Inc., 863 A.2d 772, 802 (Del. Ch. 2004) (citations and 

internal quotations omitted).

49 Hartree’s Mot. to Compel at 6-9.

50 Id.

51 Nov. 2023 Ruling Tr. at 78.

52 See id.
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Two clarifications are necessary here. One, the Court’s ruling was not that 

only materials related to whether commercially reasonable steps were taken to 

mitigate losses were discoverable—Liberty was incorrect in gleaning that limitation. 

Two, Hartree is incorrect that the November 2023 Ruling ruled that all claim 

investigations materials unprivileged. The November 2023 Ruling merely 

differentiated between an attorney acting as a claims investigator and an attorney 

acting as legal counsel.53 So, to the extent that Liberty engaged with counsel as a 

claims investigator, it must produce those documents and communications. To the 

extent that Liberty engaged with counsel for legal advice, those documents and 

communications are still privileged. 

The Court’s March 2024 Ruling is just as clear: Liberty’s motion to sever or 

stay any bad-faith litigation was denied.54 Liberty’s attempt to rehash those same 

arguments in opposition to the present motion to compel is as unpersuasive now as 

it was then.

Accordingly, insofar as Liberty was utilizing counsel as a claims adjustor, 

claims investigator, or the like, and to the extent that it hasn’t produced subject 

documents or communications, Hartree’s motion to compel Liberty to comply with 

the November 2023 Ruling and the March 2024 Ruling is GRANTED.

53 See id.:

When I say non-privileged, as was stated, you can’t simply ask a lawyer to do the 

job of a claim's adjustor or something similar and then claim that the information 

is privileged. Privilege, as we all know, has to do with legal analysis and giving 

legal advice. It does not have to do with work that is normally done by claim's 

adjustors or similar people.

54 March 2024 Ruling Tr. at 87.
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2. Documents and Communications between Liberty’s Counsel and 

PAA or Plains

Hartree also asks for Liberty to produce its counsel’s communications with 

PAA or Plains that are responsive to Hartree’s discovery requests.55 Hartree says 

that these communications are in Liberty’s “possession, custody, or control,” and 

that they are relevant.56

Hartree’s motion references Requests Nos. 1, 6, 16, 17, and 20. Those are:

No. 1: Produce any and all Documents relating to Hartree.

No. 6: Produce any and all Documents that relate to the Claim.

No. 16: Produce any and all Documents that relate to the allegations 

in the Complaint.

No. 17: Produce any and all Documents relating to the bases for any 

affirmative defense which [Liberty] intends to assert in this 

action.

No. 20: Produce all Documents that refer, relate to, or concern any 

communications between you and any non‐parties (except 

your legal counsel) concerning the allegations contained in 

the Complaint.57

Hartree is entitled to the documents and communications it seeks. Liberty’s 

communications with Plains relating to Hartree, the insurance claim, the allegations 

in the complaint, and any affirmative defenses are relevant and discoverable under 

55 Hartree’s Mot. to Compel at 9-11.

56 Id.

57 Hartree’s Mot. to Compel at 5; Hartree’s Mot. to Compel, Ex. F (Meet and Confer Emails 

between Hartree and Liberty) at 7-8.
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Rule 26’s broad standard.58 More specifically, Liberty’s communications with 

Hartree’s adversary in the Seller Litigation are relevant to Hartree’s bad-faith claim 

against Liberty. To the extent those communications aren’t relaying privileged legal 

advice, they are thus discoverable.

Liberty says that the communications Hartree seeks are not in Liberty’s 

possession, custody, or control.59 In particular, Liberty says that the communications 

were between the Underwriting Representative and Plains, not Liberty and Plains.60

Liberty is correct that only its own communications with PAA or Plains are 

discoverable, not those between the Underwriting Representative and PAA or 

Plains.61 Still, Liberty must produce any non-privileged documents or 

communications responsive to Hartree’s request, if there are any.

Accordingly, to the extent that there are non-privileged documents or 

communications between Liberty and Plains, Hartree’s motion to compel those 

documents and communications is GRANTED. 

3. Hartree’s Request for Fees

Last, Hartree asks for fees incurred with bringing this motion to compel.62

Hartree says that Liberty is forcing Hartree to litigate issues for the second time, so 

it should be awarded its legal fees as a result.63

58 See Del. Super. Ct. Civ. R. 26(a); see also, e.g., Levy, 1996 WL 742818, at *2; Woodstock,

2017 WL 3727019, at *6; Hunter, 2015 WL 5050648, at *4.

59 Defendant Liberty Surplus Insurance Corp.’s Opposition to Plaintiff’s Motion to Compel 

(“Liberty’s Opp. to Hartree’s Mot. to Compel”) at 9-10 (D.I. 242).

60 Id.

61 See Del. Super. Ct. Civ. R. 34(a).

62 Hartree’s Mot. to Compel at 2, 9, 12.

63 Id. at 9.
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Rule 37 gives the Court broad discretion to impose sanctions and shift costs 

for discovery violations.64 “The Court[, however,] must exercise care when 

imposing any sanction, and such sanction must always be ‘tailored to [a] specific 

discovery violation and its prompt cure; that includes consideration of the intent of 

the party opposing discovery, and of whether and to what extent the party seeking 

discovery has been prejudiced . . . but should always be viewed in light of [the] 

proper functions that sanctions are intended to serve.’”65

“Rule 37(a)(4)(A) instructs a judge granting a motion to compel to ‘require 

the party or deponent whose conduct necessitated the motion or the party or attorney 

advising such conduct or both of them to pay the moving party the reasonable 

expenses incurred in obtaining the order, including attorney’s fees, unless the Court 

finds that the opposition to the motion was substantially justified or that other 

circumstances make an award of expenses unjust.’”66

Hartree isn’t entitled to fees under Rule 37 here. Hartree correctly points out 

that these issues have been litigated already, and the Court did make rulings on them 

previously. But Hartree also amended its complaint to add a bad-faith claim just 

three months ago, after discovery deadlines had passed. Thus, while re-litigating 

these issues is certainly not the best use of the Court’s time or resources, the 

circumstances of this case at least provide some justification for doing so here. As 

such, Hartree’s ask for attorney’s fees and costs in this instance is DENIED. 

64 Dynacorp, et al. v. Underwriters at Lloyd’s, London, et al., 2014 WL 4656393, at *3 (Del. 

Super. Ct. Sept. 18, 2014) (citations omitted).

65 Keith v. Lamontagne, 2021 WL 4344158, at *2 (Del. Super. Ct. Sept. 20, 2021) (certain 

alterations in original) (quoting In re Rinehardt, 575 A.2d 1079 (Del. 1990)).

66 Serviz, Inc. v. ServiceMaster Co., LLC, 2021 WL 5768655, at *6 n.59 (Del. Super. Ct. Dec. 6, 

2021) (emphasis omitted) (quoting Del. Super. Ct. Civ. R. 37(a)(4)(A)).
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B. LIBERTY’S MOTION TO BIFURCATE AND STAY DISCOVERY

Liberty moves to bifurcate and stay all discovery of Hartree’s bad-faith claim 

or, in the alternative, for a protective order against so-called “Tackett” discovery.67

Liberty says that Hartree has changed course since representing to the Court that 

there would be no additional discovery, which led to the Court’s March 2024 

Ruling.68 Specifically, Liberty says that Hartree has asked for new discovery in the 

form of documents and communications involving Liberty’s counsel and internal 

analysis of the claim.69

Here, the Court already decided the legal issue of whether Hartree’s bad-faith 

claim should be severed or stayed in its March 2024 Ruling.70 The law of the case 

doctrine is a “judicially-created doctrine that prevents parties from relitigating 

issues[s] that previously have been decided.”71 “Once a matter has been addressed 

in a procedurally proper way by a court, it is generally held to be the law of that case 

and will not be disturbed by that court unless a compelling reason to do so appears.”72

The doctrine is not an absolute restriction; issues that are “clearly wrong, produce[] 

an injustice or should be revisited because of changed circumstances” might be 

67 See generally Liberty’s Mot. to Bifurcate.

68 Id. at 2-3 (citing March 2024 Ruling Tr. at 63).

69 Id. at 6-11.

70 March 2024 Ruling Tr. at 87 (denying Liberty’s motion to sever or stay).

71 CRE Niagara Holdings, LLC v. Resorts Grp., Inc., 2023 WL 2625838, at *7 (Del. Super. Ct. 

Mar. 24, 2023) (quoting Zurich Am. Ins. Co. v. Syngenta Crop Protection LLC, 2022 WL 4091260, 

at *3 (Del. Super. Ct. Aug. 24, 2022)); see also State v. Wright, 131 A.3d 310, 321 (Del. 2016) 

(“The law of the case doctrine is a self-imposed restriction that prohibits courts from revisiting 

issues previously decided, with the intent to promote efficiency, finality, stability and respect for 

the judicial system.” (internal quotations and citations omitted)).

72 Zirn v. VLI Corp., 1994 WL 548938, at *2 (Del. Ch. Sept. 23, 1994).
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reexamined.73

The March 2024 Ruling denying Liberty’s motion to stay or sever any badfaith claim is now the law of this case. So, Liberty’s new motion to bifurcate or stay 

can only proceed if there’s a change in fact or circumstance, or if the prior decision 

produced an injustice. According to Liberty, the applicable “change in fact” is 

Hartree’s requests for documents and communications involving Liberty’s counsel 

and internal analysis of the claim.74 Liberty also says that Hartree may depose 

Liberty’s attorneys, and that it seeks attorney-related communications and work 

product.75

But Hartree’s discovery requests aren’t new. In its motion to compel, Hartree 

asks that (1) Liberty produce all of its claim investigation materials; and (2) Liberty 

produce communications it or its counsel had with PAA or Plains.76 Those 

documents and communications fall in the same categories as those Hartree sought 

prior to amending its complaint.77 Further, Hartree says that it’s not planning to 

73 State v. Wright, 131 A.3d at 321 (internal citations omitted).

74 Liberty’s Mot. to Bifurcate at 6-7.

75 Id.

76 See Hartree’s Mot. to Compel.

77 See id., Ex. A (Hartree’s First Set of RFPs).

Hartree’s specific request for communications with PAA or Plains is not a new request, but a 

confirmation of the requests it had already made. See generally Hartree’s Mot. to Compel, Ex. A 

(Hartree’s First Set of RFPs); Hartree’s Mot. to Compel, Ex. F (Asking Liberty to confirm that it 

has produced all communications responsive to its requests, including communications with PAA 

or Plains). What’s more, identifying PAA or Plains in the discovery dispute isn’t a readily apparent 

“change in fact” necessary to revisit the Court’s prior decision. In any event, the production of 

now-relevant communications between Liberty and PAA or Plains doesn’t prejudice Liberty in a 

way that supersedes Rule 42’s requirement to try cases together to avoid duplication and 

inefficiency. See Del. Super. Ct. Civ. R. 42(a)-(b).
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depose any additional Liberty witnesses.78 Liberty fails to show any new facts that 

would require the Court to revisit the decided issue of bifurcating or staying 

Hartree’s bad-faith claim. 

Even if Hartree’s discovery requests did constitute a change in fact or 

circumstance, this Court’s preference for trying cases together still applies. Civil 

Rule 42(b) provides that for “convenience or to avoid prejudice, or when separate 

trials will be conducive to expedition and economy, [the Court] may order a separate 

trial of any claim . . . or of any separate issue.”79 Otherwise, when claims involve a 

common issue of law or fact, they should presumptively be tried together.80 When 

addressing bifurcation, the our Supreme Court has examined the issues of 

convenience, potential prejudice, and judicial economy.81

As the predecessor judge explained her March 2024 Ruling, any prejudice that 

might exist here must supersede Rule 42’s requirement to try cases together “to 

prevent duplication and inefficiencies.”82 The Court noted that the CCLD 

consistently tries insurance coverage claims and insurer bad-faith claims together, 

and that Liberty’s cited-to cases are inapplicable.83 That same determination still 

holds now, just three months later. Civil Rule 42 still favors trying these claims 

78 Plaintiff’s Opposition To Defendant Liberty Surplus Insurance Corporation’s Motion To 

Bifurcate And Stay All Discovery Regarding Plaintiff’s Bad Faith Claim Or, In The Alternative, 

For A Protective Order Against “Tackett” Discovery (“Hartree’s Opp. to Liberty’s Mot. to 

Bifurcate”) at 7-8 (D.I. 238).

79 Del. Super. Ct. Civ. R. 42(b).

80 Del. Super. Ct. Civ. R. 42(a).

81 See, e.g., Beebe Medical Center, Inc., v. Bailey, 913 A.2d 543 (Del. 2006).

82 March 2024 Ruling Tr. at 86.

83 Id. at 86-87.
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together.

In the alternative, Liberty moves for a protective order against “Tackett”

discovery.84 Under Civil Rule 26(c), a party moving for a protective order bears the 

burden to show “good cause” for a protective order to prevent “annoyance, 

embarrassment, oppression, or undue burden or expense[.]”85 Here, Liberty has 

made no such showing. Hartree’s discovery requests will not annoy, embarrass, 

oppress, or cause undue burden or expense for Liberty. They will merely delve into 

the claims-investigation process; a subject of this dispute.

Accordingly, Liberty’s motion to bifurcate or stay, or in the alternative, for a 

protective order against “Tackett” discovery is DENIED.

C. LIBERTY’S MOTION FOR LEAVE TO SERVE CERTAIN RFPS

Liberty asks for leave of court so that it can serve additional requests for 

production on Hartree.86 Liberty says that it needs to do so in order to determine the 

“veracity” of Hartree’s bad-faith claim, and to avoid prejudice.87

In the pleadings context, a motion for leave is “within the sound discretion of 

the court”88 and leave “shall be freely given when justice so requires.”89 In turn, the 

Court “exercise[s] its discretion in favor of granting leave” to amend a pleading.90

84 Liberty’s Mot. to Bifurcate at 11-12.

85 Del Super Ct. Civ. R. 26(c); see Lisowski v. Bayhealth Med. Ctr., Inc., 2017 WL 1423869, at 

*2 (Del. Super. Ct. Apr. 20, 2017).

86 See generally Liberty’s Mot. for Leave.

87 Id. at 4-5.

88 E.I. du Pont de Nemours & Co. v. Allstate Ins. Co., 2008 WL 555919, at *1 (Del. Super. Ct. 

Feb. 29, 2008) (citations omitted).

89 Id. (quoting Del Super Ct. Civ. R. 15(a)).

90 Id. (citing Mullen v. Alarmguard of Delmarva, Inc., 625 A.2d 258, 263 (Del. 1993)).
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Here, Liberty moves for leave under Civil Rule 26(b)(1), which governs discovery.91

Although that rule doesn’t directly address leave of court to obtain additional 

discovery, it does provide that “[p]arties may obtain discovery regarding any matter, 

not privileged, which is relevant to the subject matter involved in the pending action, 

whether it relates to the claim or defense of the party seeking discovery or to the 

claim or defense of any other party.”92

Liberty is entitled to leave to serve additional discovery. Just recently, Hartree 

amended its complaint to add a bad-faith claim against Liberty.93 That amendment 

came many months after the deadline to serve requests for production expired.94 In 

the interests of justice and fairness, Liberty should be allowed to reopen the requests 

for production window for the specific purpose of inquiring into Hartree’s bad-faith 

claim against it.

In opposition, Hartree says that Liberty seeks only production of privileged 

material, including communications between Hartree and counsel about its decision 

to amend the complaint.95 Hartree is correct that the standard discover rules govern 

any of Liberty’s additional requests. As such, Liberty may not inquire into 

privileged documents or communications. If it does so, Hartree is free to object. But 

for now, the interests of justice and fairness warrant allowing Liberty to adequately 

91 Liberty’s Mot. for Leave at 4-5 (citing Del. Super. Ct. Civ. R. 26(b)(1)).

92 Del. Super. Ct. Civ. R. 26(b)(1).

93 See generally Compl.

94 See D.I. 110 (Case Management Order) (identifying July 13, 2023 as the deadline for serving 

RFPs).

95 Plaintiff’s Opposition To Defendant Liberty Surplus Insurance Corporation’s Motion For 

Leave To Serve Requests For Production (“Hartree’s Opp. to Liberty’s Mot. for Leave”) at (D.I. 

239).
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respond to Hartree’s late-stage amended complaint; Liberty’s motion for leave to 

serve requests for production is GRANTED.

D. LIBERTY’S FIRST MOTION TO COMPEL

Liberty moves to compel Hartree’s responses to Liberty’s second set of 

requests for production.96 Relevant here, those requests ask for documents and 

communications relating to the 2024 Williams Sale of the Pine Prairie and 

Mississippi facilities.97 The same standards governing motions to compel previously 

discussed apply here.

98

Hartree responded to Liberty’s Second Set of Requests for Production Nos. 1-

8 and 14, but did not produce documents in response to Request Nos. 9-13.99

Requests Nos. 9-13 are as follows:

No. 9. All Documents and Communications relating to the value 

 attributed by either Hartree or Williams to the Pine Prairie 

Facility and SG Resources Facility, separately, as part of the 

Sale;

No. 10. All Communications, presentations, memoranda, and 

analyses prepared in connection with the Sale of the Facilities 

and related to the value of the Facilities, the expected sales 

price, and price negotiations;

No. 11. All financial projections, forecasts, and models prepared by 

Hartree or Williams in connection with the Sale;

No. 12. All Documents related to or on which [Hartree] relied to 

96 See generally Liberty’s First Mot. to Compel.

97 Liberty’s First Mot. to Compel, Ex. 2 (“Liberty’s Second Set of RFPs”) at 9-10.

98 See Part IV(A), supra.

99 See Liberty’s First Mot. to Compel, Ex. 3 (“Hartree’s Responses to Liberty’s Second Set of 

RFPs”) at 11-14.
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perform [Hartree’s] assessment and analysis of the valuation 

and purchase price received or to be received for the Facilities 

as part of the Sale; and,

No. 13. All Documents related to or on which [Hartree] relied to 

perform [Hartree’s] assessment and analysis of the valuation 

and purchase price received or to be received for the base gas 

at the Facilities as part of the Sale.100

Requests Nos. 9 and 13 ask for additional documents and communications between 

Hartree and Williams. Hartree initially objected to both by stating that “there are no 

documents responsive to this Request.”101 Now, Hartree represents that those 

documents and communications simply don’t exist.102 Thus, Hartree objects on the 

basis that those communications are not in Hartree’s “possession, custody or 

control.”103 Based on that representation, the Court cannot grant Liberty’s request 

for production of additional communications between Hartree and Williams asked 

for in Requests Nos. 9 and 13.104

Requests Nos. 10-12 are tantamount to Liberty asking for all Williams Sale 

documents. Liberty says that these documents and communications “go to the heart 

of this dispute.”105 Hartree objects to these requests as irrelevant.106 According to 

100 Liberty’s Second Set of RFPs at 9-10.

101 Hartree’s Responses to Liberty’s Second Set of RFPs at 11-14.

102 Plaintiff’s Opposition To Defendant Liberty Surplus Insurance Corporation’s Motion For 

Leave To Serve Requests For Production (“Hartree’s Opp. to Liberty’s First Mot. to Compel”) at 

6-7 (D.I. 240).

103 Hartree’s Opp. to Pl.’s First Mot. to Compel at 6-7.

104 See Kaye v. Pantone, Inc., 1983 WL 18012, at *2 (Del. Ch. Mar. 28, 1983) (“a document . . . 

is not in the possession, custody or control of a party if it does not exist.”).

105 Liberty’s First Mot. to Compel at 5.

106 Hartree’s Opp. to Liberty’s First Mot. to Compel at 8-10.
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Hartree, it has already produced to Liberty: the transaction document detailing the 

terms and conditions of the sale; documents and communications exchanged 

between Hartree and Williams relating to this litigation; and, all technical reports 

and materials about the facility.107 Hartree has also identified all employees that will 

be transferred to Williams.108

At this point, it appears that Hartree has sufficiently responded to Liberty’s 

requests. This dispute is about misrepresentations in the 2021 MIPA, not the 2024 

Williams Sale. The “heart of the dispute,” then, is whether coverage is owed under 

the MIPA based on the MIPA representations and warranties insured under the 

Hartree Policy. So very few Williams Sale documents would likely of any moment. 

From the representations made in the papers and at hearing of the motion, Hartree 

has already produced sufficient documents regarding the Williams Sale that relate to 

that central issue. Liberty’s additional discovery requests are overbroad, outside the 

scope of this case, and improper.109

Liberty’s motion to compel Hartree’s responses to Liberty’s Second Request 

for Production is DENIED.

107 Id.

108 Id.

109 See Del. Super. Ct. Civ. R. 26(b) (listing instances when discovery can be limited). In support 

of its motion, Liberty points to the Court’s in limine ruling in the Seller Litigation, when the Court 

denied Hartree’s motion to preclude any evidence about the Williams Sale at trial. Liberty’s Mot. 

to Compel at 5. Liberty says that since the admissibility threshold is higher than discoverability, 

any Williams Sale documents should be produced for the same reasons that guided the Court there. 

Id. But Liberty ignores a salient difference between the two suits: the Seller Litigation was a fraud 

action; this is an insurance coverage case. Fraud has a reliance element, and thus, a requisite state 

of mind that includes future plans for the facility. There’s no reliance element for a coverage 

dispute. Here the determination is simply whether coverage is owed or not under the policy. So, 

the Court’s in limine ruling in the Seller Litigation is inapplicable and unhelpful for Liberty.
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E. LIBERTY’S SECOND MOTION TO COMPEL

Liberty’s second motion to compel asks the Court to compel Hartree to: 

(1) produce unredacted documents and communications previously redacted; 

(2) produce certain withheld documents and communications; and (3) provide 

Liberty with an updated itemized privilege log.110

1. Request for Redacted Documents and Communications

Liberty asks for the 1,500 documents that Hartree previously redacted to be 

produced in an unredacted form.111 In response, Hartree says that it has been and 

currently is in the process of reviewing previously redacted documents.112 Hartree 

has produced certain of those documents post-review and assured the Court that, 

following its review, Hartree has and will remove redactions as appropriate and will 

serve an amended privilege log.113 Liberty is simply unconvinced and pointed to 

certain remaining redactions to suggest the excised material can’t be privileged.

Based on Hartree’s representations, the Court finds Liberty’s request for 

unredacted documents to be both premature and moot. If Hartree fails to remove 

redactions, or if Liberty disagrees with Hartree’s production, it is free to seek more 

specific relief at the appropriate time. But mere suspicion is not enough for the 

blanket relief it now seeks.

Liberty’s motion to compel production of wholly unredacted documents is 

DENIED. 

110 See generally Liberty’s Second Mot. to Compel.

111 Liberty’s Second Mot. to Compel at 11-12.

112 Plaintiff’s Opposition To Defendant Liberty Surplus Insurance Corporation’s Motion To 

Compel Plaintiff’s Responses To Defendant’s Discovery Requests (Hartree’s Opp. to Liberty’s 

Second Mot. to Compel”) at 11 (D.I. 241).

113 Hartree’s Opp. to Liberty’s Second Mot. to Compel at 11.
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2. Request for Withheld Documents and Communications

Liberty also moves to compel all claim-related documents and 

communications.114 The documents in question are listed in Hartree’s privilege log, 

which is attached as an exhibit to Liberty’s motion.115 The privilege log identifies 

the documents being withheld and identifies the reasoning for such, citing either 

attorney-client privilege,116 common interest privilege,117 or the work product 

doctrine.118

114 Liberty’s Second Mot. to Compel at 4-11.

115 See generally id., Ex. 2 (“Hartree Privilege Log”).

116 See Hartree Privilege Log. The attorney-client privilege “generally protects the 

communications between a client and an attorney acting in his professional capacity . . . .” Alaska 

Elec. Pension Fund v. Brown, 988 A.2d 412, 419 (Del. 2010) (citing Moyer v. Moyer, 602 A.2d 

68, 72 (Del. 1992)). The privilege is “intended to encourage full and frank communication 

between clients and their attorneys” and its common-law roots are now codified in Rule 502 of the 

Delaware Rules of Evidence. Zirn, 621 A.2d at 781; D.R.E. 502. The attorney-client privilege 

applies to confidential communications between an attorney and her client “made for the purpose 

of facilitating the rendition of legal professional legal services. D.R.E. 502(b).

117 See Hartree Privilege Log. The common interest privilege has been codified in the Delaware 

Rules of Evidence 502. The rule states in pertinent part:

A client has a privilege to refuse to disclose and to prevent any other person from 

disclosing confidential communications made for the purpose of facilitating the 

rendition of professional legal services to the client . . . (3) by the client or the 

client’s representative or the client’s lawyer or a representative of the lawyer to a 

lawyer or a representative of a lawyer representing another in a matter of common 

interest.

D.R.E. 502(b)(3).

118 See Hartree Privilege Log. The work product doctrine safeguards the “adversary system of 

litigation by assuring an attorney that his private file shall, except in unusual circumstances, remain 

free from the encroachments of opposing counsel.” Rembrandt Techs., L.P. v. Harris Corp., 2009 

WL 402332, at *8 (Del. Super. Ct. Feb. 12, 2009) (quoting Bristol–Myers Co. v. Sigma Chemical 

Co., 1988 WL 147409, at *2 (D. Del. Jan. 20, 1988)).
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Liberty first says that Hartree waived its privilege per the policy’s terms.119

For support, Liberty points to the policy’s cooperation clauses contained in Section 

VI.120 As Hartree rightly points out, Liberty’s argument is plainly refuted by the 

policy’s language. The policy must be construed as a whole, giving effect to all its 

provisions, not just isolating individual paragraphs.121 As such, the Court “must read 

the specific provisions of the contract in light of the entire contract.”122 Here, the 

same section of the policy identified by Liberty reads, “[n]othing in this Policy shall 

119 Liberty’s Second Mot. to Compel at 4-7.

120 Id. (citing Compl., Ex. A (“Hartree Policy”) § VI (Correspondence; Cooperation; Maintenance 

of Records)). Specifically, Liberty points to Section VI.A, titled “Cooperation,” which states:

The Insureds shall, at the written request of the Underwriting Representative and to 

the extent reasonably practicable and legally permissible, provide to the 

Underwriting Representative copies of any material, formal and written 

correspondence, pleadings or other material documents relating to such Claim 

Notice that are delivered or filed by or on behalf of the Insureds, their 

representatives or any other entity, in each case, to the extent in the Insureds’ 

possession or reasonably available to the Insureds. The Insurers shall cooperate in 

good faith with the Insureds to preserve the confidential and privileged status of 

any such correspondence, pleading or other documents.

Hartree Policy § VI.A. Liberty also points to a portion of Section VI.D, titled “Privilege; Fifth 

Amendment Protection,” which states:

With respect to any documents or information referenced in this Section that are 

protected by attorney-client privilege, work product doctrine or other privileges, 

the Underwriting Representative and the Insurers shall cooperate in good faith with 

the Insureds to preserve the privileged status of any such document or information 

(including by signing a joint defense or similar agreement acceptable to the 

Underwriting Representative and the Named Insured).

Hartree Policy § VI.D.

121 Salamone v. Gorman, 106 A.3d 354, 368 (Del. 2014); see also E.I. du Pont de Nemours & Co. 

v. Shell Oil Co., 498 A.2d 1108, 1113 (Del. 1985) (“In upholding the intentions of the parties, a 

court must construe the agreement as a whole, giving effect to all provisions therein.”).

122 Chi. Bridge & Iron Co. N.V. v. Westinghouse Elec. Co. LLC, 166 A.3d 912, 913–14 (Del. 

2017).
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be construed to require the waiver of any attorney client privilege, work product 

doctrine . . . or similar protection.”123 So, Hartree did not waive its right to assert 

privilege by signing the policy.124

Liberty next says that Hartree’s communications with Atlantic, Hartree’s 

third-party insurance broker, are not privileged under the common interest 

doctrine.125 Hartree counters that both the common interest doctrine and attorneyclient privilege protect its communications with Atlantic.126 A party asserting 

attorney-client privilege must show that “a communication was made (1) for the 

purpose of seeking, obtaining or delivering legal advice, (2) between privileged 

persons, and (3) that confidentiality was intended.”127 Based on the information 

provided in the privilege log, the communications between Hartree and Atlantic 

meet all three requirements. Those communications are thus privileged.

In Liberty’s view, Hartree’s pre-litigation documents and communications 

aren’t protected by the work product doctrine either.

128

 

123 Hartree Policy § VI.D. Additionally, Section VI.B says: “In disclosing...information...the 

Insureds expressly do not waive any attorney-client privilege associated with such information or 

any protection afforded by the work-product doctrine . . .” Hartree Policy § VI.B (emphasis added).

124 For further support, see Arch Ins. Co. v. Murdock, 2019 WL 2005750 (Del. Super. Ct. May 7, 

2019) (observing that “[c]ourts have found that insureds do not waive attorney-client privilege by 

agreeing to cooperate with insurers” and citing Bituminous Cas. Corp. v. Tonka Corp., 140 F.R.D. 

381, 386 (D. Minn. 1992) (“This court rejects the conclusion that because an insured agrees to 

cooperate with the insurance company, in the event he is sued or otherwise makes a claim under 

the policy, that the insured has thereby forever contractually waived the attorney-client privilege.”) 

and Remington Arms Co. v. Liberty Mut. Ins. Co., 142 F.R.D. 408, 416–17 (D. Del. 1992) (applying 

Connecticut law and does a survey of other states that also follow the same rule)).

125 Liberty’s Second Mot. to Compel at 6-7.

126 Hartree’s Opp. to Liberty’s Second Mot. to Compel at 7-8.

127 Rembrandt Technologies, L.P., 2009 WL 402332, at *5.

128 Liberty’s Second Mot. to Compel at 7-9.
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To qualify for work product protection, “materials [must] be written 

specifically in preparation for threatened or anticipated litigation.”129 Thus, the 

doctrine does not encompass “[r]outine business records and other materials 

gathered in the ordinary course of business” and, accordingly, such documents are 

“not protected from discovery by an opposing party.”130

Here, Liberty says that the documents Hartree claims work product protection 

over were prepared in connection with the claims, not with this litigation.131 But the 

documents identified as work product in the privilege log all post-date November 

2021, after Hartree filed its insurance claim and after it learned of the Insurers’ 

coverage position.132 According to Hartree, the pre-litigation documents in question 

were prepared when “Hartree retained coverage counsel for the purposes of 

evaluating the possibility of, and preparing to, bring a claim in litigation against 

Hartree’s insurers in the event that they failed to pay for Hartree’s losses.”133 That 

lines up with the dates and descriptions in the privilege log,134 and the timeline of 

the case. Thus, the documents and communications there is no principled reason to 

question applicability of the work product doctrine here.

129 Zirn, 621 A.2d at 782 (citing Riggs Nat’l Bank of Washington, D.C. v. Zimmer, 355 A.2d 709, 

715 (Del. Ch. Apr. 9, 1976)).

130 See id., 621 A.2d at 782.

131 Liberty’s Second Mot. to Compel at 7-9.

132 See Hartree Privilege Log at 3 (certain documents withheld under the work product doctrine 

dated as “11/15/2021-11/16/2021”). The 11/15/2021 date is the earliest identified in Hartree’s 

Privilege Log for a document or category of documents withheld as work product.

133 Hartree’s Opp. to Liberty’s Second Mot. to Compel at 9.

134 See, e.g., Hartree Privilege Log at 4 (describing category of documents withheld due to work 

product as “Documents/Communications between Hartree, Hartree inhouse counsel, and Hartree 

deal counsel providing, requesting, or reflecting legal advice regarding Hartree’s insurance claim 

in anticipation of or in connection with litigation regarding Hartree’s insurance claim.”).
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Last, Liberty says that Hartree made the claim-related documents and 

communications “at issue,” so they are no longer protected by any possible attorneyclient privilege.135 The “at issue” exception to attorney-client privilege applies when 

the party holding the privilege waives the privilege in one of two basic ways: (1) the 

party injects the communications into the litigation, or (2) the party injects an issue 

into the litigation, the truthful resolution of which requires an examination of the 

confidential communications.136 The “at issue” exception is based on the principles 

of waiver and of fairness, so that the party holding the privilege cannot use it as both 

a sword and a shield.137 The exception has also been described as a “waiver . . . 

where the issue was lack of good faith.”138

The Court does not find that Hartree has made any and all claim-related 

documents and communications at issue here. Its communications with counsel 

weren’t injected into this litigation, and there aren’t any identifiable issues that relate 

to those communications either. Thus, Liberty’s argument that Hartree has made 

otherwise privileged documents and communications “at issue” is unpersuasive.

Liberty’s motion to compel production of withheld claim-related documents 

and communications is DENIED.

3. Request for Itemized Privilege Log

Liberty moves to compel Hartree to produce an itemized privilege log that 

135 Liberty’s Second Mot. to Compel at 9-11.

136 Hoechst Celanese Corp. v. Nat’l Union Fire Ins. Co., 623 A.2d 1118, 1122 (Del. Super. Ct. 

1992).

137 Id.

138 Ramada Inns v. Drinkhall, 490 A.2d 593, 597 (Del. Super. Ct. 1985).
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includes post-filing documents.139 On August 7, 2023, the Court signed a stipulatedto order governing certain discovery issues, including privilege logs.140 The Order 

provided that the “parties shall not . . . be required to log privileged documents or 

information prepared subsequent to the commencement of this action.”141 And the 

Order required that any party demanding itemized logging or logging of documents 

prepared post-lawsuit “explain[] the need” for its request.142

In support of its motion, Liberty broadly states that, “[g]iven the significance 

of the privilege issue presented,” Hartree must produce such a log.143 But Liberty 

hasn’t identified the need for itemization, or for post-litigation documents. It is also 

unclear which documents exactly that Liberty is referring to in its request. Having 

failed to explain its need more fully and persuade the Court otherwise during 

argument, the terms Court’s August 7, 2023 Order govern. Liberty is not entitled to

now receive an itemized privilege log that includes post-filing documents.

IV. CONCLUSION

For the foregoing reasons:

Hartree’s Motion to Compel Defendant Liberty’s Compliance with this 

Court’s Prior Orders and Responses to Plaintiff’s Discovery Requests

(D.I. 232) is GRANTED in part and DENIED in part;

Liberty’s Motion to Bifurcate and Stay All Discovery of Hartree’s BadFaith Claim or, in the Alternative, for a Protective Order Against 

“Tackett” Discovery (D.I. 233) is DENIED;

139 Liberty’s Second Mot. to Compel at 11-12.

140 D.I. 135 (August 7, 2023 Order Concerning Certain Procedural and Discovery Matters).

141 Id. at 14-15.

142 Id. at 14.

143 Liberty’s Second Mot. to Compel at 12.
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Liberty’s Motion for Leave to Serve Requests for Production (D.I. 234) 

is GRANTED;

Liberty’s Motion to Compel Plaintiff’s Responses to Defendant’s 

Second Request for Production (D.I. 235) is DENIED; and,

Liberty’s Motion to Compel Plaintiff’s Responses to Defendant’s 

Discovery Requests (D.I. 236) is DENIED.

IT IS SO ORDERED.

/s/ Paul R. Wallace

 _______________________

Paul R. Wallace, Judge

cc: All Counsel via File and Serve