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

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 CONNOLLY GALLAGHER LLP

Kevin P. Rickert, Esquire 1201 North Market Street, 20th Floor 

YOUNG CONAWAY STARGATT Wilmington, Delaware 19801

& TAYLOR, LLP

100 North King Street John Zavitsanos, Esquire

Wilmington, Delaware 19801 Taylor Freeman, Esquire

Harrison Scheer, Esquire

Melvin A. Brosterman, Esquire Thomas Frashier, Esquire

Patrick N. Petrocelli, Esquire AHMAD, ZAVITSANOS & MENSING P.C.

Daria D. Anichkova, Esquire 1221 McKinney Street, Suite 2500 

STROOCK & STROOCK & LAVAN 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-07-073 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 heard oral 
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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

ASSESSMENT OF FEES IS NOT WARRANTED HERE.

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, 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.’3 

The latter part of the Rule grantsthe 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 shift 

costs for discovery violations.” (citations omitted)).
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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.’5

“‘Discovery is intended to be a cooperative and self-regulating process,’ 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 mandatory.7 Instead, the Court looks to the facts of the specific discovery 

contest and its resolution. 

Take for 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 (Del. 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 

because “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).
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discovery certain redactions made on privilege grounds, and that at least one . . .

employee had failed 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’ discovery 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 to 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 burdensome, 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). 
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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 thereon,

observing that the relevance standard is broad at the discovery stage15 and that 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

Defendants’ initial objections, while not wholly baseless, were not well-found

under controlling Delaware discovery standards. And that one remaining objection 

to Hartree’s discovery requests did result in increased expenditure of resources 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) (“pretrial 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 

omitted)). 

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. 2021) (cleaned up); Henlopen Hotel 

v. United Nat’l Ins. Co., 2019 WL 3384843, at *1 (Del. Super. Ct. July 26, 2019).
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At bottom, in the Court’s eyes, such an award of expenses here would be unjust.17 

In 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. 

CONCLUSION

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. PearPop 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”).