November 27, 2018 Practice Points

Failure to Identify Documents in Interrogatory Responses Did Not Create “Trial Ambush”

By Callan R. Jackson

Responding to interrogatory requests seeking the identification of documents is a time-consuming and expensive process. These requests often are used to increase a party’s discovery burden, particularly in cases with already asymmetrical discovery burdens such as stockholder litigation.

In In re Appraisal of Jarden Corp., Consol. C.A. No. 12456-VCS (Del. Ch. Sept. 7, 2018), the court held that a party’s failure to identify documents in response to interrogatories was insufficient grounds to warrant striking the documents from the trial record when those documents were otherwise produced and relied on in pretrial discovery.

By way of background, petitioner stockholders, seeking a court appraisal of the fair value of their shares following a merger, moved to strike certain documents from the trial record because those documents were not identified by the respondent corporation in response to the petitioners’ interrogatories seeking the identification of “all documents” in broad categories related to the company’s financial projections. The petitioners only sought to strike 17 documents from the trial record, compared to the presumably thousands of documents that the respondent company produced in response to the petitioners’ discovery requests. The challenged documents all related to the company’s performance between the signing and closing of the merger, and presumably reflected a change in the company’s financial performance that undermined the petitioners’ proffered valuation. In response, the respondent argued that the challenged documents were produced in discovery and relied on by expert witnesses, and therefore the petitioners were well aware of the documents.

The court denied the motion to strike the documents from the trial record. In denying the motion, the court noted that it was debatable whether the documents even needed to be identified in the respondent company’s interrogatory responses. However, the court found that even if the documents should have been identified in the interrogatory responses, there was no “trial ambush.” The court emphasized that exclusion of evidence for discovery violations is a severe sanction. Because the petitioners were aware of the challenged documents well before trial, the court concluded that the respondent’s failure to identify the documents in an interrogatory response was insufficient harm to warrant striking the documents from the record.

Practitioners should be aware that, while it is important to answer interrogatory responses fully and completely, failure to identify certain documents in response to broad interrogatories may not necessarily constitute a sanctionable discovery violation. Often it may be impracticable and/or incredibly burdensome to identify every document in discovery that may be responsive to a broad interrogatory request. If the opposing party has knowledge of the documents in advance of trial, then there may likely be limited harm in failing to identify the documents. This may especially be true in situations where a party produces tens or even hundreds of thousands of documents throughout pretrial discovery. The court’s decision in Jarden reflects a commonsense approach that focuses on whether there is any prejudice or unfairness to the party that propounded the interrogatory, ultimately finding that there was none; therefore, the motion was denied.

Callan R. Jackson is an associate with the Wilmington, Delaware, law firm of Potter Anderson & Corroon LLP. The views expressed by the author are not necessarily the views of Potter Anderson & Corroon LLP or any of its clients.


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