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Charge Injection Technologies, Inc. v. E.I. Dupont De Nemours & Co.

Superior Court of Delaware, New Castle

March 31, 2015

CHARGE INJECTION TECHNOLOGIES, INC., Plaintiff,
v.
E.I. DUPONT DE NEMOURS & COMPANY, Defendant.

Date Submitted: March 4, 2015

Upon Defendant E. I. DuPont De Nemours & Company's Renewed Motion to Compel Plaintiff to Respond to Defendant's Sixth Set of Requests for the Production of Documents and Things: DENIED.

Ryan P. Newell, Esquire, Connolly Gallagher LLP, The Brandywine Building, Amir H. Alavi, Esquire (pro hac vice) (argued), Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing P.C., Attorneys for Plaintiff Charge Injection Technologies, Inc.

John A. Sensing, Esquire (argued), Kathleen F. McDonough, Esquire, Potter Anderson & Corroon LLP, Attorneys for Defendant E. I. du Pont de Nemours & Company.

OPINION

Jan R. Jurden, President Judge

I. INTRODUCTION

Before the Court is Defendant E. I. du Pont de Nemours and Company's ("DuPont") Renewed Motion to Compel. For the reasons that follow, DuPont's Motion is DENIED.

II. BACKGROUND

Charge Injection Technologies, Inc. ("CIT") instituted suit against DuPont in December 2007, alleging that DuPont wrongfully used and disclosed CIT's proprietary and confidential technology.[1] Between November 2010 and October 2011, there was little activity in this case, apparently because of CIT's failure to pay prior counsel's bills.[2] On October 31, 2011, the Court granted CIT's original counsel's motion to withdraw.[3] On December 1, 2011, CIT's current lead counsel, Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing ("AZA") entered its appearance in the case.[4]

In 2012, CIT obtained litigation financing from Aloe Investments Limited ("Aloe").[5] In the summer of 2013, upon learning of the litigation financing, DuPont questioned whether CIT had engaged in champerty and maintenance in violation of Delaware law.[6] On August 12, 2013, DuPont filed an Emergency Motion to Stay ("Motion to Stay"), requesting a stay on the merits until the champerty and maintenance issues are resolved.[7]

Prior to filing its Motion to Stay, DuPont served CIT with discovery requests on the champerty and maintenance issue. DuPont's Sixth Set of Document Requests, which are also the subject of this Renewed Motion to Compel, seeks the production of: (1) litigation financing agreements between CIT and its investors; (2) communications between CIT or its attorneys and its investors pertaining to the investment and the negotiation of the financing agreement (including drafts of the financing agreements); and (3) communications between CIT or its attorneys and its investors pertaining to this litigation.[8]

CIT's interrogatory responses identified Aloe as an investor, and stated that CIT had no relationship to Aloe prior to January 1, 2007.[9] CIT refused to produce any documents in response to DuPont's document requests, including the litigation-financing agreement between CIT and Aloe ("Financing Agreement"), claiming such documents are protected as attorney work product and/or subject to attorney/client privilege and the requests are irrelevant, overly broad and unduly burdensome.[10]

During the parties' meet-and-confer process, CIT represetned to DuPont that it did not assign any part of its claims to Aloe, and that it retains full control over litigation strategy and settlement.[11] CIT claimed that the purpose of this disclosure was "to put the Court's, and DuPont's, mind at ease that nothing remotely improper has occurred . . . ."[12] Rather than ease DuPont's mind, the disclosures heightened DuPont's suspicion that CIT might be engaging in champerty and maintenance.

On October 16, 2013, DuPont filed a motion to compel CIT to produce documents responsive to its document requests relating to champerty and maintenance.[13] That same ...


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