SUPERIOR COURT OF THE STATE OF DELAWARE
P AUL R. W ALLACE J UDGE L EONARD L. W ILLIAMS J USTICE C ENTER 500 N. K ING S TREET , S UITE 10400 W ILMINGTON , D ELAWARE 19801 (302) 255

- 0660

Date Submitted: May 26, 2023 Date Decided: June 8 , 2023

Martin S. Lessner, Esquire Arthur G. Connolly III, Esquire Elisabeth S. Bradley, Esquire Alan R. Silverstein, Esquire M. Paige Valeski, Esquire C ONNOLLY G ALLAGHER LLP Kevin P. Rickert, Esquire 1201 North Market Street, 20th Floor Y OUNG C ONAWAY S TARGATT Wilmington, Delaware 19801 & T AYLOR , LLP 100 North King Street John Zavitsanos, Esquire Wilmington, Delaware 19801 Taylor Freeman, Esquire Harrison Scheer, Esquire Melvin A. Brosterman, Esquire Thomas Frashier, Esquire Patric k N. Petrocelli, Esquire A HMAD , Z AVITSANOS & M ENSING P.C. Daria D. Anichkova, Esquire 1221 McKinney Street, Suite 2500 S TROOCK & S TROOCK & L AVAN LLP Houston, Texas 77010 180 Maiden Lane New York, New York 10038

RE: Hartree Natural Gas Storage, LLC v. PAA Natural Gas Storage, L.P., et al. C.A. No. N22C

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- 073 PRW CCLD Hartree’s Request for Fees

Dear Counsel:

This Letter Order resolves Plaintiff Hartree’s request for fees as a result of its

partial success on a recent motion to compel.

In March 2023, Hartree filed a motion to compel. The Court he ard oralHartree Natural Gas Storage, LLC v. PAA Natural Gas Storage, L.P., et al.

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argument and granted Hartree’s motion , in part

. 1 At argument , Hartree split its

presentation between first arguing the substance of the motion and second arguing

why an award of fees was appropriate.

The Court allowed supplemental briefing on the application for fees and that

request is now ripe for decision

. 2

A SSESSMENT OF F

EES I S N OT W ARRANTED H

ERE
.

Rule 37 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, inclu ding 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.’ 3

The latter part of the Rule g rants the Court broad discretion over the fee

- award

question

. 4 The Court, though

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

1 D.I. 99.

2 D.I. 98.

3 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)).

4 Dynacorp, et al. v. Underwriters at Lloyd’s, London, et al. , 2014 WL 4656393, at *3 (Del. Super. Ct. Sept. 18, 2014) (“Rule 37 gives the Court broad discretion to impose sanctions and shi ft costs for discovery violations.” (citations omitted)).Hartree Natural Gas Storage, LLC v. PAA Natural Gas Storage, L.P., et al.

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discovery, an d 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.’ 5

“‘Discovery is intended to be a cooperative and self

- regulating p rocess,’ and

‘cooperation and communication among the parties are essential during

discovery.’” 6

As a general matter

— its seemingly compulsory language

notwithstanding

— a successful motion to compel does not itself mean that awarding

fees is mand atory. 7 Instead, the Court looks to the facts of the specific discovery

contest and its resolution

.

Take f or example M&G Polymers USA, LLC v. Carestream Health, Inc. 8

There this Court granted Rule 37 fees after needing to order the production of

documents near the close of trial because the defendant “ had not identified during

5 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 , 1082 (Del. 1990)).

6 Serviz, Inc. , 2021 WL 5768655, at *6 n.59 (quoting Cartanza v. Cartanza , 2013 WL 1615767, at *2 (De l. Ch. Apr. 16, 2013)).

7 See, e.g., Showell v. Mountaire Farms, Inc. , 2002 WL 31818512, at *2 (Del. Super. Ct. Nov. 18, 2002) (granting the motion to compel but declining to award fees because “the opposition to the motion was substantially justified as the assertion of attorney

- client privilege was a valid legal argument under the facts of this case”); MacBride v. Rainbow River Tours, Inc. , 1978 WL 187982, at *2 (Del. Super. Ct. Dec. 1, 1978) (granting the motion to compel but declining to award fees bec ause “there [was] some merit to the defendant’s position” and because “the plaintiff [was] getting the benefit of information obtained by the defendant at much less effort and cost”).

8 2010 WL 1611042 (Del. Super. Ct. Apr. 21, 2010).Hartree Natural Gas Storage, LLC v. PAA Natural Gas Storage, L.P., et al.

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discovery certain redactions made on privilege grounds, and that at least one

. . . employee had fai led to turn over clearly relevant documents to [defendant]’s trial

counsel during discovery.” 9

While in Suburban Medical Services v. Brinton Manor Center

, 10 this Court

found that even though the defendants “ delayed and stonewalled certain of

Plaintiffs’ d iscovery attempts with blanket objections and a seeming lack of interest

in engaging with what otherwise is a cooperative process

, ” fees were not

warranted. 11 After granting in part, and denying in part, the motion to compel, the

Court concluded that while “it’s a close call,” it would not award fees

. 12

This discovery kerfuffle tends closer to Suburban Medical than to M&G

Polymers

. Hartree brought this motion t o compel seeking : (1) production of

documents; (2) production of a usable hit report; and (3) discovery from Plains

executives Jeremy Goebel, Chris Chandler, and Harry Pefanis. 13 And Defendants

objected because , in their view : (1) the requests were too burden some , and (2) the

9 Id. at *1 , 76

. 10 2022 WL 17688194, at *5

- 6 (Del. Super. Ct. Dec. 15, 2022).

11 Id. at *6.

12 Id.

13 Mot. to Compel at 2 (D.I. 62) ; id. at 3

- 4 (defendants “have not produced one document”); id. at 4

- 9 (defendants have failed to search for terms Hartree has requested); id. at 9

- 10 (defendants “have refused to collect documents” from certain Plains executives).Hartree Natural Gas Storage, LLC v. PAA Natural Gas Storage, L.P., et al.

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three custodians identified had little relevant evidence to offer

. 14

The parties resolved the first two issues leaving the Court to decide only the

custodians issue. The Court granted the remainder of the motion to compel ther eon , observing that the relevance standard is broad at the discovery stage 15 and th at the

Defendants’ had not shouldered their burden of demonstrating that the sought

- after

custodians indeed did not have relevant information subject to disclosure under

Rule 26. 16

Defenda nts ’ initial objection s, while not wholly baseless, were not well

- found

under controlling Delaware discovery standards . And th at one remaining objection

to Hartree’s discovery requests did result in increased expenditure of resource s by

all involved

. That is not to be lauded . But the Court, applying the broad discretion

it is given under Rule 37, finds that the circumstances here do not merit fee

- shifting.

14 Response to Mot. to Compel at 6

- 9 (D.I. 76)

. 15 See, e.g. Levy v. Stern , 1996 WL 742818, at *2 (Del. Dec. 20, 1996) (“pre trial discovery rules are to be afforded broad and liberal treatment” (citation omitted)); Woodstock v. Wolf Creek Surgeons, P.A. , 2017 WL 3727019, at *6 (Del. Super. Ct. Aug. 30, 2017) (“The scope of discovery under [Rule 26] is broad and far

- reaching.” (citations omitted ) ); Hunter v. Bogia , 2015 WL 5050648, at *4 (Del. Super. Ct. July 29, 2015) (“In Delaware . . . a broad and liberal discovery process has been designed and adopted to avoid surprises during civil litigation.” (citations omi tted)).

16 “ When a party objects to providing discovery, the burden . . . is on the objecting party to show why and in what way the information requested is privileged or otherwise improperly requested.” Wood v. U.S. Bank Nat ’ l Ass’n

, 246 A.3d 141, 149 (Del. Ch. 20 21 ) ( cleaned up ) ; Henlopen Hotel v. United Nat’l Ins. Co. , 2019 WL 3384843, at *1 (Del. Super. Ct. July 26, 2019)

.Hartree Natural Gas Storage, LLC v. PAA Natural Gas Storage, L.P., et al.

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At bottom, in the Court ’s eyes, such an award of expenses here would be unjust. 17

I n the end, the discovery foul was relatively minor and not at all proportional to any

fee

- shift, much less the almost $ 30,000 sought by Hartree

.

C ONCLUSION

For the foregoing reasons, Hartree’s Rule 37 request for fees is DENIED

.

IT IS SO ORDERED.

_______________________ Paul R. Wallace, Judge cc: All Counsel via File and Serve

17 See Wollner v. Pear

P op Inc. , 2022 WL 2205359, at *7 (Del. Ch. June 21, 2022) (observing that when employing Court of Chancery Rule 37 ’s justness standard “the court [is asked] to look at the broader context when granting relief”).