DBMP LLC v. Delaware Claims Processing Facility, LLC

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

DBMP LLC; JOHNSON & JOHNSON; )
PECOS RIVER TALC, LLC; RED RIVER )
TALC, LLC; J-M MANUFACTURING CO., )
INC.; THE DOW CHEMICAL COMPANY; )
ROHM AND HAAS COMPANY; and UNION )
CARBIDE CORPORATION, )
)
Plaintiffs, )
)
v. ) C.A. No. 2025-0404-JTL
)
DELAWARE CLAIMS PROCESSING )
FACILITY, LLC; ARMSTRONG WORLD )
INDUSTRIES, INC. ASBESTOS PERSONAL )
INJURY SETTLEMENT TRUST; THE )
BABCOCK & WILCOX COMPANY )
ASBESTOS PI TRUST; CELOTEX )
ASBESTOS SETTLEMENT TRUST; )
FEDERAL-MOGUL ASBESTOS PERSONAL )
INJURY TRUST; THE FLINTKOTE )
ASBESTOS TRUST; OWENS CORNING )
FIBREBOARD ASBESTOS PERSONAL )
INJURY TRUST; OWENS-ILLINOIS )
ASBESTOS PERSONAL INJURY TRUST; )
PITTSBURGH CORNING CORPORATION )
ASBESTOS PERSONAL INJURY )
SETTLEMENT TRUST; UNITED STATES )
GYPSUM ASBESTOS PERSONAL INJURY )
SETTLEMENT TRUST; and WRG )
ASBESTOS PI TRUST, )
)
Defendants. )

OPINION DENYING MOTIONS TO DISMISS

Date Submitted: August 14, 2025
Date Decided: October 24, 2025
Kelly E. Farnan, Blake Rohrbacher, RICHARDS, LAYTON & FINGER, P.A.,
Wilmington, Delaware; Attorneys for Plaintiffs.

Gregory M. Gordon, Daniel B. Prieto, JONES DAY, Dallas, Texas; Morgan R. Hirst,
JONES DAY, Chicago, Illinois; Counsel for Plaintiffs DBMP LLC, Johnson &
Johnson, Pecos River Talc, LLC, and Red River Talc, LLC.

Allison M. Brown, Kristen R. Fournier, KIRKLAND & ELLIS LLP, New York, New
York; Counsel for Plaintiffs The Dow Chemical Company, Rohm and Haas Company,
and Union Carbide Corporation.

Frank Fletcher, J-M EAGLE, Los Angeles, California; Counsel for J-M
Manufacturing Co., Inc.

K. Tyler O’Connell, Kirsten A. Zeberkiewicz, Alena V. Smith, MORRIS JAMES LLP,
Wilmington, Delaware; Attorneys for Defendants Armstrong World Industries, Inc.
Asbestos Personal Injury Settlement Trust; The Babcock & Wilcox Company Asbestos
PI Trust; Celotex Asbestos Settlement Trust; Federal-Mogul Asbestos Personal Injury
Trust; The Flintkote Asbestos Trust; Owens Corning Fibreboard Asbestos Personal
Injury Trust; Owens-Illinois Asbestos Personal Injury Trust; Pittsburgh Corning
Corporation Asbestos Personal Injury Settlement Trust; United States Gypsum
Asbestos Personal Injury Settlement Trust; and WRG Asbestos PI Trust.

Edwin J. Harron, Kevin A. Guerke, Lauren Dunkle Fortunato, Renae P. Pagano,
YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware; Counsel
for Defendant Delaware Claims Processing Facility, LLC.

LASTER, V.C.
The plaintiffs regularly face asbestos litigation, and one of them is trying to

address its asbestos-related liabilities through bankruptcy. When defending against

asbestos claims, the repeat litigants invariably seek to learn whether the claimant

suffered other asbestos exposures. The existence of other exposures can reduce the

named defendants’ liability, facilitate a more favorable settlement, or open an avenue

to seek contribution or indemnification.

Many former asbestos manufacturers filed for bankruptcy and, as part of their

plans of reorganization, created settlement trusts to handle existing and future

claims. Parties with claims against the former debtors cannot sue in court; they must

apply for compensation from the settlement trusts. After handling claims for decades,

the settlement trusts have amassed repositories of information about asbestos claims.

The repeat litigants invariably subpoena the settlement trusts for information

about other potential exposures. At least fifteen states have enacted statutes

providing that the claims data is relevant and discoverable. Courts overseeing high-

volume asbestos dockets have entered case management orders to the same effect.

The defendants here are ten settlement trusts created to process asbestos

claims, plus an entity to which many settlement trusts have outsourced the claims-

handling function. In January 2025, they gave notice to their past claimants that they

intended to implement new document retention policies starting on April 15, 2025.

The policies generally contemplate that on a rolling basis, any data relating to

resolved claims will be destroyed after one year. Implementing the policies will cause
the destruction of the vast bulk of the existing claims data. Going forward, the

ongoing operation of the policies will curtail the available claims data.

The repeat litigants filed this action seeking a declaratory judgment that the

claims processors have a duty to preserve the claims data. To implement that

declaration, they seek a permanent injunction barring the claims processors from

implementing the data policies.

The claims processors moved to dismiss the complaint. First, they argue that

this court lacks subject matter jurisdiction. The repeat litigants seek permanent

injunctive relief and previously sought preliminary injunctive relief that the claims

processors rendered moot by stipulating to maintain the status quo. This court has

subject matter jurisdiction to hear the dispute.

Second, the claims processors say the repeat litigants lack standing to sue

because the data polices cannot hurt them. To the contrary, it is reasonably

conceivable that the repeat litigants will suffer harm because they no longer will be

able to obtain claims data. It is reasonably conceivable that without access to the

claims data, the repeat litigants will lose more cases and settle more claims for larger

payouts. Relatedly, the claims processors argue that an injury from the non-retention

of documents is not cognizable. Generally, that would be true, but in the unique

circumstances of this case, it is reasonably conceivable that the repeat litigants face

a concrete injury that this litigation can remedy.

Finally, the claims processors argue that the repeat litigants cannot state a

claim on which relief can be granted. They can. Courts of equity have long possessed

2
the authority to grant a bill of discovery. Through that equitable device, a court of

equity can assist a petitioner in securing evidence for use in a pending or

contemplated civil proceeding. The complaint pleads facts sufficient to support a

reasonable inference that the repeat litigants could obtain a bill of discovery. At the

pleading stage, that is all that is required.

The motion is denied. The case can proceed past the pleading stage.

I. FACTUAL BACKGROUND

The facts are drawn from the complaint and the documents it incorporates by

reference.1 At this procedural stage, the court must credit the complaint’s allegations

along with all reasonable inferences.

A. The Harm Caused By Asbestos

Asbestos is a generic term for naturally occurring minerals offering high

tensile strength and durability, while also exhibiting high resistance to heat, fire,

electricity, and corrosion. Once thought to be a miracle material, asbestos found many

1 Citations in the form “Compl. ¶ ___” refer to paragraph in the operative
complaint. Citations in the form of “Opening Br. ___” refer to The Trust Defendants’
Opening Brief in Support of Motion to Dismiss Verified First Amended Complaint for
Declaratory and Injunctive Relief, Dkt. 32. Citations in the form of “Answering Br.
___” refer to Plaintiffs’ Answering Brief in Opposition to Defendants’ Motions to
Dismiss, Dkt. 34. Citations in the form of “Defs.’ Suppl. Br. ___” refer to Trust
Defendants’ Supplemental Submission on the Authorities Identified by the Court,
Dkt. 63.

3
commercial applications, including insulation, automotive brakes and clutches,

ceiling and floor tiles, dry wall, roof shingles, and cement.2

Over time, scientists determined that asbestos can cause serious health

problems. Exposure to the ambient level of asbestos in the environment poses little

risk, but people who work with asbestos-containing products or asbestos itself face

serious health risks. 3 High levels of exposure can result in many types of lung

disease.4 One is mesothelioma, a malignant cancer of the lining around the lungs.

Mesothelioma is invariably fatal and causes death by suffocation, often within a few

months of diagnosis.5

Exposure to asbestos typically occurs by inhaling airborne fibers. Although

theoretically one exposure is enough to cause disease, more frequent exposures

increase the likelihood and severity of disease. The nature of asbestos exposure,

however, makes it difficult to know when the disease-causing event occurred.

Moreover, mesothelioma and other asbestos-related disease have long latency

2 See In re Garlock Sealing Techs., LLC, 504 B.R. 71, 75 (Bankr. W.D.N.C.

2014); see also H.R. Rep. No. 103-835 § 111, at 40 (1994) [hereinafter House Report];
U.S. Dep’t of Health & Hum. Servs., Toxicological Profile for Asbestos § 1.3 at 3–4
(2001) [hereinafter Toxicological Profile].

3 Toxicological Profile § 1.3 at 3.

4 Id. § 3.2.1 at 25; see also Nat’l Cancer Inst., Asbestos Exposure and Cancer

Risk (2021), https://www.cancer.gov/about-cancer/causes-prevention/risk/substances/
asbestos/asbestos-fact-sheet (last visited Aug. 19, 2020).

5 Toxicological Profile § 1.6 at 6; Garlock, 504 B.R. at 75.

4
periods—with a median latency period of thirty-five years.6 Although more extensive

exposure can shorten the latency period, asbestos-related diseases rarely develop in

less than ten years.7

Because many industrial and commercial applications used asbestos

extensively before scientists and the public understood its toxicity, asbestos has

caused or contributed to the deaths of millions of Americans. Asbestos miners,

insulation workers, automobile mechanics, and maintenance workers have been

particularly hard hit.

B. Litigation Against Asbestos Miners and Major Manufacturers

As injured individuals or their surviving family members learned about the

effects of asbestos, they brought tort lawsuits seeking compensation. For the

claimants, the long latency periods created unique difficulties in proving liability and

damages. Injured claimants also could have been exposed to different manufacturers’

products at different times and different places, further complicating their cases.

To overcome those problems, the typical tort claimant in an asbestos lawsuit

names thirty to one-hundred defendants. If liability is established, damages are

6 Garlock, 504 B.R. at 76; accord House Report 40.

7 Garlock, 504 B.R. at 76; accord Toxicological Profile § 3.2.1.7 at 49.

5
apportioned among the liable parties according to principles that vary across

jurisdictions.8

The initial asbestos plaintiffs were asbestos miners who sued their employers.

Other early plaintiffs worked in plants manufacturing asbestos-based insulation. The

defendant who originally faced the most asbestos litigation was Johns-Manville

Corporation (“Manville”), the manufacturer with the largest market share for

asbestos-based insulation and other asbestos products. Virtually every asbestos-

related complaint named Manville as a defendant, and Manville generally led the

defense. When Manville filed for bankruptcy in 1982, the company had been named

in 12,500 lawsuits and expected to be named in another 50,000 to 100,000 cases. As

part of its reorganization, Manville created and funded a settlement trust to

compensate present and future claimants. Manville also obtained what is now known

as a “channeling injunction” that required all present and future asbestos claimants

to submit claims to the settlement trust rather than suing Manville in court.9

In 1994, Congress amended the bankruptcy code to facilitate asbestos-related

reorganizations. 10 The amendment allowed a debtor facing substantial asbestos-

8 See Laura Kingsley Hong & Robert E. Haffke, Apportioning Liability in
Asbestos Litigation: A Review of the law in Key Jurisdictions, 26 T. M. Cooley L. Rev.
681, 682–83 (2009).

9 House Report 40–41.

10 Bankruptcy Reform Act of 1994, Pub. L. No. 103-394, § 111 (1994) (codified

as amended at 11 U.S.C. § 524(g)); see House Report 40.

6
related liabilities to establish a Manville-style settlement trust that would assume

the debtor’s liability for “damages allegedly caused by the presence of, or exposure to,

asbestos or asbestos-containing products.” 11 The amendment also authorized the

channeling injunction that the Manville reorganization introduced.12

With Congress having created a path, other major manufactures of asbestos-

based insulation followed it, including Celotex Corporation, Eagle Picher, and Keane

Corporation. Like Manville, those companies reorganized, formed settlement trusts,

and obtained channeling injunctions.13

After the major asbestos-product manufacturers exited the court system,

asbestos plaintiffs began pursuing smaller manufacturers. From 2000 to 2005, the

remaining manufacturers of asbestos-based insulation reorganized, created

settlement trusts, and obtained channeling injunctions. Those companies included

Owens Corning Fibreboard, Pittsburgh Corning, U.S. Gypsum, Babcock & Wilcox,

Federal Mogul, Turner & Newell, Armstrong World Industries, and W.R. Grace.14

11 11 U.S.C. § 524(g)(2)(B)(i)(I).

12 11 U.S.C. § 524(g)(2)(B)(i); see House Report 40–41.

13 See Garlock, 504 B.R. at 83.

14 See id. Some commentators estimate that by 2047, when the asbestos
scourge will have mostly run its course, several hundred thousand deaths will have
resulted from asbestos exposure, and over 10,000 corporations will have been named
as defendants, leading to over 100 bankruptcies. See Lester Brickman, Fraud and
Abuse in Mesothelioma Litigation, 88 Tulane L. Rev. 1071, 1075–76 (2014).

7
Ten of the eleven defendants here are settlement trusts created through the

reorganizations of asbestos-based insulation manufacturers, including Armstrong

World Industries, Babcock & Wilcox, Federal-Mogul, Owens Corning Fibreboard,

Pittsburgh Corning Corporation, USG Corporation, and W.R. Grace.15

C. The Shift Towards Other Product Manufacturers

With the principal manufacturers of asbestos-based insulation having exited

the court system, asbestos claimants began suing the manufacturers of other

asbestos-containing products, such as gaskets, pumps, automotive brake pads, and

residential construction materials.16 Asbestos claimants could also submit claims to

the settlement trusts, but features of the trusts led to strategic behavior.

When creating a settlement trust, a debtor had to estimate its total potential

exposure to asbestos-related claims. The claims fell into two categories. The first

category encompassed claims from people directly injured by the debtor’s products

(“Direct Claimants”). The second category encompassed claims from other defendants

who had compensated Direct Claimants were seeking contribution or indemnification

(“Indirect Claimants”). 17 The debtor’s assets were insufficient to compensate all

15 Compl. ¶¶ 26, 39.

16 SeeBrickman, supra, at 1082–85; Garlock, 504 B.R. at 75–81; Mark A.
Behrens, Asbestos Trust Transparency, 87 Fordham L. Rev. 107, 108 (2018).

17 See, e.g., Answering Br. Ex. B §§ 1.140, 1.142, 1.207, 1.216, 2.6, 5.6
[hereinafter Owens Corning Chapter 11 Plan]. For a list of comparable provisions in
the Chapter 11 plan documents of the other trust defendants, see Answering Br. 22–
23 n.14.

8
claimants. The plan of reorganization therefore established a rate at which all

claimants could recover, such as fifty cents on the dollar. By contrast, in the court

system, a claimant could recover one hundred cents on the dollar from a solvent

defendant.

In light of the different rates of recovery, lawyers representing asbestos

claimants have an incentive to prioritize claims against solvent defendants. They also

have an incentive to argue that, relative to the settlement trusts, the solvent

defendants bear greater responsibility for the claimants’ injuries and must pay a

greater share of the liability. Efforts to shift liability towards solvent defendants

might involve stressing the number and extent of exposures to their products while

downplaying the number and extent of exposures to bankrupt manufacturers’

products.18

Those efforts need not involve fraud. Evidentiary uncertainties about the

frequency, extent, and causal role of different exposures provide ample room for good

faith advocacy. 19 Unfortunately, cases of actual fraud exist, with some lawyers

withholding evidence of exposure to bankrupt manufacturers’ products until after

obtaining recoveries through the court system.20

18 Compl. ¶¶ 7–8.

19 See, e.g., Colloquium, Asbestos Bankruptcy Trusts and Their Impact on the

Tort System, 7 J.L. Econ. & Pol’y 281, 295–96 (2010).

20 Compl. ¶ 8; see Garlock, 504 B.R. at 84 (“Most significant to Garlock [a gasket

manufacturer], though, was the fact that often the evidence of exposure to those

9
Solvent defendants have the opposite incentives. They can seek to minimize

their own liability by identifying and emphasizing a claimant’s exposures to products

made by bankrupt manufacturers. To do that, they need information about what a

claimant’s other exposures might be.

At first blush, it might seem as if asbestos claimants could provide the

information themselves, but that is often not the case. Long latency periods mean

memories fade. Moreover,

[s]ince asbestos plaintiffs are often testifying about exposures that
occurred many decades prior, they often rely on their lawyers to refresh
their recollection. Because asbestos personal injury cases are focused on
solvent defendants, those are the only exposures the plaintiff’s lawyers
has an incentive to discuss with the client. The result is that discovery
in tort cases often yields incomplete information about a plaintiff’s trust-
related exposures.21

The solvents defendants need sources of information that could reveal other

exposures or establish patterns involving particular industries, time periods, job

sites, and products.22

One source of information could be the lawyers who represent the asbestos

claimants. Over time, attorneys specializing in asbestos cases have developed

insulation companies’ products also ‘disappeared.’ This occurrence was a result of the
effort by some plaintiffs and their lawyers to withhold evidence of exposure to other
asbestos products and to delay filing claims against bankrupt defendants’ asbestos
trusts until after obtaining recoveries from Garlock (and other viable defendants).”);
accord Brickman, supra, at 1112–26.

21 Behrens, supra, at 121 (footnotes omitted).

22 See Garlock, 504 B.R. at 92–93.

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repositories of information from investigating and pursuing claims.23 In many cases,

the attorneys representing the claimants have more information about likely

exposures than the claimants themselves. 24 But attorneys on the plaintiffs’ side

understandably resist providing that information. In Garlock, the court found that

the difficulties the debtor faced in obtaining information were so great that it declined

to treat the debtor’s history of settlements as a reliable basis to estimate the debtor’s

potential liability.25

For solvent defendants, the settlement trusts constitute the only realistic

source of information about other potential exposures and their severity. Any

claimant submitting a proof of claim to a settlement trust must provide information

about work history, job responsibilities, evidence of product use, and other potential

23 Id. at 82 (“As cases are worked up over years of practice, plaintiffs’ lawyers

develop evidence of asbestos exposure at certain job sites or in certain occupations—
from product records, worker depositions and the like. Consequently, in many
instances, the exposure evidence is under the control of the plaintiffs’ lawyer rather
than the plaintiff.”); see Hong & Haffke, Apportioning Liability, supra, at 683–84.

24 See Colloquium, Asbestos Bankruptcy Trusts and Their Impact on the Tort

System, 7 J.L. Econ. & Pol’y 281, 291 (2010) (defendants’ attorney James L. Stengel
speaking) (“One of the values of the plaintiffs bar gives to their clients is with today’s
claimants: if you’re a seventy-eight year old gentleman with mesothelioma, you
probably know where you worked, and you have some surmise as to who may be
responsible there. But frankly, it’s the plaintiffs bar who can help educate them as to
what products they’ve been exposed to, and which of those products contain asbestos.
There’s a whole store of intellectual property at the plaintiffs bar level that’s not
immediately apparent, and those claimants may not know that they have a claim,
say against Union Carbide [(which is a defendant in this action)], my client, until
they actually talk to a plaintiff’s lawyer.”); accord Garlock, 504 B.R. at 82.

25 See Garlock, 504 B.R. at 74.

11
exposures, including witness statements (the “Claims Data”). After decades of

processing claims, the settlement trusts possess Claims Data that can reveal when

and where asbestos exposures took place involving which asbestos-related products

and which manufacturers.

To obtain Claims Data, solvent defendants routinely subpoena the settlement

trusts.

D. The Claim Processors And Their Data Policies

Ten of the eleven defendants are settlement trusts created to process and pay

claims. The eleventh is the Delaware Claims Processing Facility, LLC, an entity that

many settlement trusts have retained to handle the claim processing function. This

decision calls them the “Claim Processors.”

By January 2025, the Claim Processors had adopted data policies that

generally contemplated only retaining Claims Data for one year after a claim was

resolved (the “Data Policies”). If implemented, the Data Policies would result in the

destruction of the vast majority of existing Claims Data. Going forward, the Claim

Processors would only retain Claims Data for a short period.

On January 15, 2025, the Claim Processors sent notices to their current and

past claimants informing them that the Data Policies would go into effect on April 15.

The notices stated that the Claim Processors were implementing the Data Policies to

protect the claimants’ privacy and guard against data breaches.

In March 2025, the plaintiffs here learned about the notices. They are DBMP

LLC, Johnson & Johnson, Pecos River Talc, LLC, Red River Talc, LLC, J-M

12
Manufacturing Co., Dow Chemical Company, Rohm and Haas Company, and Union

Carbide Corporation. They have distinction of being the defendants most commonly

sued at present by asbestos claimants (collectively, the “Repeat Litigants”).

The Repeat Litigants concluded that the Data Policies would eviscerate their

ability to obtain Claims Data to defend against asbestos claims. On April 1, 2025, the

Repeat Litigants asked the Claim Processors not to implement the Data Policies. The

Claim Processors refused.

The Repeat Litigants contend that decision to implement the Data Polices

resulted from self-interested conduct by leading plaintiffs lawyers. When a plan of

reorganization creates a settlement trust, the primary creditor constituency is

typically the class of Direct Claimants. The lawyers who represent Direct Claimants

are well positioned to bargain over the terms of the trust, including who serves as the

trustee, who populates the trust oversight committee whose approval is necessary for

significant actions, and who serves as the representative of future claimants. The

Repeat Litigants contend that the plaintiffs’ lawyers have secured the appointment

of trustees and future claimant representatives who favor their interests. They also

contend that the plaintiffs’ lawyers have secured positions on the oversight

committees. The Repeat Litigants believe that the plaintiffs’ lawyers used their

influence to obtain the Data Policies—at least in part—to impair the Repeat

Litigants’ ability to defend against asbestos claims.

13
E. This Litigation

The Repeat Litigants filed this lawsuit on April 14, 2025. The complaint

asserted a single claim for a declaratory judgment establishing that the Claims

Processors have a duty to preserve the Claims Data. To implement that declaration,

the Repeat Litigants seek permanent injunctive relief preventing the Claim

Processors from failing to retain the Claims Data.

To block the implementation of the Data Policies while this litigation was

pending, the Repeat Litigants sought a preliminary injunction and moved for

expedited proceedings. The Claim Processors mooted that application by stipulating

that the Data Policies would not go into effect while the litigation is pending. On

April 24, 2025, the court approved the stipulation as an order.

The Claim Processors subsequently moved to dismiss the complaint. They

contend that this court lacks subject matter jurisdiction over this action, that the

Repeat Litigants lack standing, and that the Repeat Litigants have failed to state a

claim on which relief can be granted.

II. SUBJECT MATTER JURISDICTION

The Claim Processors initially moved to dismiss the complaint for lack of

subject matter jurisdiction under Rule 12(b)(1). Subject matter jurisdiction refers to

a court’s “authority to adjudicate the type of controversy involved in the action.”26

26 Restatement (Second) of Judgments § 11 (A.L.I. 1982).

14
The Court of Chancery possesses limited subject matter jurisdiction. The court

“can acquire subject matter jurisdiction in the first instance by three different means:

(1) the invocation of an equitable right; (2) a request for an equitable remedy when

there is no adequate remedy at law; or (3) a statutory delegation of subject matter

jurisdiction.”27

“The party seeking the Court’s intervention bears the burden of establishing

jurisdiction.”28 The court determines whether it has subject matter jurisdiction by

looking at the face of the complaint.29 But a court is not bound by the complaint’s

allegations.30 The court must conduct its own independent assessment to determine

whether subject matter jurisdiction exists.

A. Subject Matter Jurisdiction Over The Remedy Sought

The Repeat Litigants initially ground subject matter jurisdiction on their

request for an equitable remedy. When considering that basis for jurisdiction, the

27 Kraft v. WisdomTree Invs., Inc., 145 A.3d 969, 973 (Del. Ch. 2016) (internal

quotation marks omitted).

28 Shore Invs., Inc. v. BHole, Inc., 2009 WL 2217744, at *2 (Del. Ch. July 14,

2009).

29 Diebold Comput. Leasing, Inc. v. Com. Credit Corp., 267 A.2d 586, 590 (Del.

1970).

30 See 5 C. Wright & A. Miller, Federal Practice & Procedure § 1206 [hereinafter

Wright & Miller]. Before 2024, the Court of Chancery Rules did not require that a
party plead subject matter jurisdiction. Rule 8 now requires that a complaint contain
“a short and plain statement of the grounds for the Court’s subject-matter
jurisdiction,” conforming the rule to its federal counterpart. Ct. Ch. R. 8(a)(1); cf. Fed.
R. Civ. Pro. 8(a)(1).

15
court “must look beyond the remedies nominally being sought, and focus upon the

allegations of the complaint in light of what the plaintiff really seeks to gain by

bringing his or her claim.”31 On top of requesting an equitable remedy, the plaintiff

must lack an adequate remedy at law.32 A remedy at law is adequate if it “will afford

the plaintiffs full, fair and complete relief.”33 If the plaintiff possesses a non-equitable

remedy that is “complete, practical and efficient,” then a request for an equitable

remedy cannot support jurisdiction.34

The Claim Processors should not have contested subject matter jurisdiction

based on the remedy sought. The Court of Chancery has “jurisdiction over requests

for interim injunctive relief necessary to maintain the status quo.” 35 The Repeat

Litigants sued for injunctive relief, including a preliminary injunction to prevent the

Claim Processors from implementing the Data Policies and deleting the Claims Data

31 Candlewood Timber Gp., LLC v. Pan Am. Energy, LLC, 859 A.2d 989, 997

(Del. 2004).

32 El Paso Nat. Gas Co. v. TransAmerican Nat. Gas Corp., 669 A.2d 36, 39 (Del.

1995)

33 Hughes Tool Co. v. Fawcett Publ’ns, Inc., 315 A.2d 577, 579 (Del. 1974).

34 Int’l Bus. Machs. Corp. v. Comdisco, Inc., 602 A.2d 74, 78 (Del. Ch. 1991)

(internal quotation marks omitted).

35 E.I. du Pont de Nemours & Co. v. Bayer CropScience, L.P., 2008 WL 2673376,

at *2 (Del. Ch. July 2, 2008); accord City of Wilm. v. Addicks, 47 A. 366, 374 (Del. Ch.
1900) (describing a request for an injunction to “maintain[] the status quo” pending
a determination of the parties’ legal rights as “a familiar and unquestioned ground of
equitable jurisdiction”).

16
before the case could be litigated. The Claim Processors would not have paused their

efforts absent this lawsuit and the request for a preliminary injunction. That request

provided ample basis for this court to exercise subject matter jurisdiction.

The Claim Processors now argue that because they agreed not to implement

the Data Policies while this litigation was pending, they rendered the preliminary

injunction application moot and prevented the request for a preliminary injunctive

relief from providing a basis for subject matter jurisdiction. That argument is

frivolous.

A court derives its subject matter jurisdiction from the constitutional or

statutory provisions that create the court and give it authority.36 “[S]ubject matter

jurisdiction may not be created by waiver or by agreement of the parties. Similarly,

such an agreement also may not restrict or eliminate subject matter jurisdiction that

is otherwise present.”37 Once equitable subject matter jurisdiction exists, it continues

throughout the case. “While it is true that subsequent events may moot a cause of

36 Restatement (Second) of Judgments § 11 cmt. a.

37 2 Moore’s Federal Practice—Civil § 12.30[1], Lexis+ (2025); see Gandhi-
Kapoor v. Hone Cap. LLC, 307 A.3d 328, 338 (Del. Ch. 2023) (“Because a court’s
subject matter jurisdiction derives from a grant of sovereign authority, parties cannot
alter it by private ordering.”), aff’d sub nom. CSC Upshot Ventures I, L.P. v. Gandhi-
Kapoor, 326 A.3d 369 (Del. 2024); Kroll v. City of Wilm., 2023 WL 6012795, at *14
(Del. Ch. Sept. 15, 2023) (“Subject matter jurisdiction concerns this court’s powers,
not the parties’ rights. Therefore, parties may not waive the existence or non-
existence of subject matter jurisdiction.”); de Adler v. Upper N.Y. Inv. Co. LLC, 2013
WL 5874645, at *8 (Del. Ch. Oct. 31, 2013) (“The Court’s subject matter jurisdiction
cannot be determined by contract, by consent in the pleadings, or even by procedural
waiver.” (footnotes omitted)).

17
action, such events do not operate to divest a court of its jurisdiction once that

jurisdiction attaches.”38

“A request for injunctive relief clearly constitutes equitable relief over which

this Court has jurisdiction.”39 The request must be bona fide, and here it was. The

parties commendably agreed to preserve the status quo and avoid the need for a

hearing on the Repeat Litigants’ application for a preliminary injunction, but that

agreement did not deprive the court of subject matter jurisdiction.40 The agreement

could not retroactively change the fact that when the Repeat Litigants filed suit—the

point when jurisdiction is measured—the Repeat Litigants had sought a preliminary

injunction, needed injunctive relief to preserve the status quo, and would have

38 Heathergreen Commons Condo. Ass’n v. Paul, 503 A.2d 636, 645 (Del. Ch.

1985); see Tull v. Turek, 147 A.2d 658, 665 (Del. 1958) (“[O]nce equity has acquired
jurisdiction of a cause, it will retain that jurisdiction to give final relief to end the
controversy. This remains the rule even though circumstances have arisen after the
filing of the complaint which make the equitable relief prayed for impracticable.”
(citing 1 John Norton Pomeroy, A Treatise on Equity Jurisprudence § 237(e) (Spencer
W. Symons ed., 5th ed. 1941) [hereinafter Pomeroy])).

39 Alpha Builders, Inc. v. Sullivan, 2004 WL 2694917, at *2 (Del. Ch. Nov. 5,

2004); Cont’l Auto. Sys., Inc. v. Nokia Corp., 2023 WL 1370523, at *21 (Del. Ch. Jan.
31, 2023).

40 Cf. Weiner v. Miller, 1990 WL 54915, *1 (Del. Ch. Apr. 27, 1990) (“Simple

cessation of an actionably wrongful activity does not remove this Court’s ability to
grant injunctive relief. Injunctive relief is obviously prospective in nature, focusing
on what the defendant is likely to do in the future.”); 43A C.J.S. Injunction § 24 (2025)
(“The grant of, or the refusal to grant, an injunction invokes the court’s equitable
powers. Although there are expressions to the contrary, the authority of a court to
grant writs of injunction is generally an inherent one that antedates specific
legislative sanction.” (footnotes omitted)).

18
obtained it had the Claim Processors not agreed to it. Despite their protests to the

contrary, the Claim Processors conceded the need for injunctive relief by agreeing to

it.

That should have ended the matter. But assuming that the parties’ agreement

could somehow prevent the court from considering the request for a preliminary

injunction as a basis for jurisdiction, the Repeat Litigants also seek a permanent

injunction preventing the Claim Processors from deleting the Claims Data. The Claim

Processors respond with a series of arguments about why the request for a permanent

injunction cannot support jurisdiction.

First, the Claim Processors assert that a request for a permanent injunction

cannot support equitable jurisdiction because a declaratory judgment standing alone

constitutes an adequate remedy at law. Seeking a declaratory judgment does not

change the jurisdictional inquiry. The Declaratory Judgment Act neither adds to nor

subtracts from a court’s subject matter jurisdiction. 41 The act “merely provides a

41 Reeder v. Wagner, 2007 WL 3301026, at *1 (Del. Ch. Nov. 1, 2007) (“It is well

settled that the Declaratory Judgment Act does not independently confer jurisdiction
on this court.”); E. Shore Env’t, Inc. v. Kent Cnty. Dep’t of Plan., 2002 WL 244690, at
*4 (Del. Ch. Feb. 1, 2002) (finding subject matter jurisdiction over a claim for
declaratory judgment claim when independent basis for asserting equitable
jurisdiction exists); see 10 Del. C. § 6501 (“[C]ourts of record within their respective
jurisdictions shall have power to declare rights, status and other legal relations
whether or not further relief is or could be claimed.”); see also Unif. Declaratory
Judgment Act pmbl. (1922) (“[The Declaratory Judgment] does not take anything
from the law as it exists today. Every right is preserved and will be enforced. The
Declaratory Judgment only increases the court’s power for good.”). Delaware adopted
the Uniform Declaratory Judgment Act virtually verbatim. Compare 10 Del. C.
§§ 6501–13 with Unif. Declaratory Judgment Act §§ 1–17 (1922).

19
procedural means for securing judicial relief in an expeditious and comprehensive

manner” before traditional justiciability principles might permit.42

When evaluating whether equitable jurisdiction exists in

a declaratory judgment action, the question remains whether “there is any

underlying basis for equity jurisdiction measured by traditional standards.”43 If the

subject of the declaration is an equitable right, then the Court of Chancery has

42 See Hoechst Celanese v. Nat’l Union Fire Ins. Co., 623 A.2d 1133, 1136 (Del.

Super. 1992). See generally 1 Edwin Borchard, Declaratory Judgment, ch. 2, at 23–26
(1934); Unif. Declaratory Judgment Act pmbl. (1922) (“[Traditional justiciability
principle] has long been found too narrow to meet the requirements of modern social,
industrial and economic conditions. Men ought not be forced to the necessity of
encountering damage or assuming ruinous responsibilities before they are permitted
to seek and secure a court decision as to their rights and duties.”). If anything, the
Declaratory Judgment Act is more equitable than legal: The concept of a declaratory
judgment descends from the power of a court of equity to issue declarations and
injunctions to prohibit threatened wrongs before they are committed. See
Restatement (Second) of Judgments § 33 cmt. a (A.L.I. 1982); Borchard, supra, at 25–
26 (“In these typical cases, no wrong or even hostile activity has been committed or
threatened—a condition, it may be observed, which justified judicial relief in various
equitable actions long before declaratory actions and judgments were eo nomine
specifically authorized.”); see also C.S. Potts, Declaratory Judgment, 9 Tex. L. Rev.
172, 175 (1931) (tracing the history of declaratory judgment in modern times to
sixteenth century Scotland and then to the English Chancery Procedure Act of 1852).

43 Diebold, 267 A.2d at 591.

20
jurisdiction.44 So too if the General Assembly has granted subject matter jurisdiction

to the Court of Chancery by statute.45

Jurisdiction also arises “if the petitioner can demonstrate a need for equitable

relief to implement the remedy.”46 Here again, the litigant’s “prayers [for relief] are

not controlling and so the court must consider what plaintiff’s complaint really

seeks.”47 A permanent injunction against implementing the Data Policies would be a

natural remedy to implement the declaratory judgment. Subject matter jurisdiction

exists.

Next, the Claim Processors argue that an injunction to enforce a declaratory

judgment cannot support equitable jurisdiction because “[d]eclaratory judgments are

44 Id.
(“Jurisdiction under the Declaratory Judgment Act is based on . . .
whether the issues raised would be presented in a legal or equitable action if coercive
relief were being sought.”); see Kraft, 145 A.3d at 985 (collecting cases).

45 See, e.g., Sciabacucchi v. Salzberg, 2018 WL 6719718 (Del. Ch. Dec. 19, 2018)

(entertaining declaratory judgment to consider whether charter provision complied
with DGCL), rev’d on other grounds, 227 A.3d 102, 137–38 (Del. 2020); Solak v.
Sarowitz, 153 A.3d 729, 733 (Del. Ch. 2016) (entertaining declaratory judgment over
whether fee-shifting bylaw complied with DGCL).

46 250 Exec., LLC v. Christina Sch. Dist., 2022 WL 588078, at *6 (Del. Ch. Feb.

28, 2022); see also Kraft, 145 A.3d at 973–74, 979.

47 Highlights for Child., Inc. v. Crown, 193 A.2d 205, 245 (Del. Ch. 1963); see,

e.g., Kraft, 145 A.3d at 985–86 (finding equity jurisdiction existed after determining
the “fundamental essence of Kraft’s declaratory judgment request” was “to cancel
shares” despite the nature of the underlying declaratory judgment claim being legal
and the prayed-for relief only being a declaratory judgment).

21
self-executing and have the force and effect of a final judgment or decree.”48 That is

partially right. The Declaratory Judgment Act provides that a declaration “shall have

the force and effect of a final judgment or decree.”49 But a declaratory judgment is

final only in the sense that it has issue- and claim-preclusive effect.50 The declaratory

judgment is not self-executing, either in the sense of requiring a party to do something

or in the sense of invariably providing all the relief a party needs. An affirmative

declaratory judgment does not direct, require, or compel action; a negative

declaratory judgment does not prohibit or enjoin action. The declaratory judgment

interprets the obligation at issue. “Nevertheless, a party that fails to act in

conformance with a declaration exposes themselves to the possibility of coercive

48 Opening Br. 18 (citing Reed v. Brady, 2002 WL 1402238, at *3 (Del. Ch. June

21, 2002) (footnote and internal quotation marks omitted), aff’d, 818 A.2d 150 (Del.
2003)).

49 10 Del. C. § 6501.

50 Restatement (Second) of Judgments § 33 cmt. a (1934) (“Preclusion as to

matters declared. If a declaratory judgment is valid and final, it is conclusive, with
respect to the matters declared, as to all persons who are bound by the judgment.”);
see also Fed. R. Civ. Pro. 57 advisory committee’s note to 1937 enactment (“The fact
that a declaratory judgment may be granted ‘whether or not further review is or could
be prayed’ indicates that declaratory relief is alternative or cumulative and not
exclusive or extraordinary.”); Diebold, 267 A.2d at 591 (“Obviously, the Declaratory
Judgment Act does not fulfill the tests required for the ouster of equity jurisdiction.
The element of express exclusiveness is lacking; and, as noted by the Chancery Court
in the instant case, a declaratory judgment by the Superior Court might well require
a return to Chancery for enforcement; thus, the element of equivalent remedy is also
lacking. Any overlapping jurisdictions created by s 6501 are concurrent.”). On the
force and effect of a final judgment, see generally William Baude, The Judgment
Power, 96 Geo. L.J. 1807, 1826–31 (2008).

22
relief.” 51 That follow-on order enforces the declaratory judgment. The declaration

itself is not self-executing in the sense that the Claim Processors suggest.52

As the next step in their argument, the Claim Processors note that parties are

expected to obey the law, so unless there is reason to believe that a party would ignore

the court’s declaration, there is no need to supplement a declaratory judgment with

an add-on injunction.53 That doctrine originated in a case that sought an injunction

against the Department of Transportation. The Secretary of Transportation

51 Zhou v. Deng, 2022 WL 2803876, at *1 (Del. Ch. July 15, 2022) (ORDER);

250 Exec., 2022 WL 588078, at *6 (“[I]f it turns out that equitable relief is necessary,
then mechanisms exist . . . [to] obtain equitable relief after the declaratory judgment
has issued.”); Cantor Fitzgerald, L.P. v. Cantor, 1999 WL 413394, at *3 (Del. Ch. June
15, 1999) (“A declaratory judgement [sic] declares the rights, status, or other legal
relations of the parties to a lawsuit and is quite different both in its effect and
requisite pleadings than a request for a permanent injunction.” (footnote omitted)).

52 The source of the “self-executing” language is a Superior Court case in which

a party argued that a pending appeal suspended the effectiveness of a declaratory
judgment. The court rejected that contention, stating: “[The declaratory judgment] is
a self-executing decree which is not suspended by an appeal and the filing of a
supersedeas bond.” Reese v. Hartnett, 74 A.2d 68, 69 (Del. Super. 1950). A party could
apply for and obtain a stay, but the order would not be stayed automatically. Later
decisions have taken this quotation out of context, starting with Reed, 2002 WL
1402238, at *3, and cited the phrase as a statement about the need for further relief.
See, e.g., Korn v. Wagner, 2011 WL 4357244, at *1 (Del. Ch. Sept. 7, 2011). Two of
those decisions are my own. See 250 Exec., 2022 WL 588078, at *6 (quoting Reed);
Penton Bus. Media Hldgs., LLC v. Informa PLC, 252 A.3d 445, 470 (Del. Ch. 2018)
(same). Mea culpa. The origins of the language and the implications of a declaratory
judgment reveal that the phrase is now misused.

53 E.g., 250 Exec., 2022 WL 588078, at *6 (“Parties are expected to comply with

final judgments. Consequently, unless there is reason to believe that a party will
disregard the judgment, there is no need for an add-on in injunction.”); Organovo
Hldgs., Inc. v. Dimitrov, 162 A.3d 102, 114 n.52 (Del. Ch. 2017) (collecting cases).

23
submitted an affidavit representing that the department would comply with the

court’s decision. The court gave respect to a co-equal branch of government and

accepted the representation. 54 The assumption of legal compliance continues to

appear most frequently and have the most force in cases where parties seek injunctive

relief against a government body.55

54 See Beaver Blacktop, Inc. v. Dep’t of Transp., 1991 WL 101375, at *2 (Del.

Ch. June 7, 1991) (Allen, C.).

55 Christiana Town Ctr., LLC v. New Castle Cnty., 2003 WL 21314499, at *4

n.19 (Del. Ch. June 6, 2003) (“It would be anathema to our form of government to
believe, as a baseline principle, that after a court renders a declaratory judgment
another governmental agency would not follow that decision. It may actually be the
case that a particular agency does not follow such a judgment, but a party should only
seek injunctive relief if that agency actually refuses to comply with the judicial
declaration.”); see, e.g., Kroll, 2023 WL 6012795, at *7 (same for City of Wilmington);
Citizens Against Solar Pollution v. Kent Cnty., 2023 WL 2199646, *2 (Del. Ch. Feb.
24, 2023) (same for county’s contractor), aff’d, 2025 WL 751102 (Del. Mar. 10, 2025);
United Servs. Auto. Ass’n v. Lions Share Tr., 2023 WL 2145418, at *3 (Del. Ch. Feb.
21, 2023) (same for the secretary of state); Delta Eta Corp. v. City of Newark, 2023
WL 2982180, at *16–17 (Del. Ch. Feb. 2, 2023) (same for City of Newark); Birney v.
Del. Dep’t of Safety & Homeland Sec., 2022 WL 16955159, at *2 (Del. Ch. Nov. 16,
2022) (same for state agency); In re COVID-Related Restrictions on Religious Servs.,
285 A.3d 1205, 1235 (Del. Ch. 2022) (same for governor); Mock v. Div. of State Police,
Dep’t of Safety & Homeland Sec., 2022 WL 1744439, at *9 (Del. Ch. May 31, 2022)
(same for state police); Crown Castle Fiber LLC v. City of Wilm., 2021 WL 2838425,
at *5–6 (Del. Ch. July 8, 2021) (same for City of Wilmington); Young v. Red Clay
Consol. Sch. Dist., 2017 WL 2271390, at *53 (Del. Ch. May 24, 2017) (same for school
districts); Del. Bldg. & Constr. Trades Council, AFL-CIO v. Univ. of Del., 2014 WL
2218730, at *3 (Del. Ch. May 29, 2014) (same for the University of Delaware);
Gladney v. City of Wilm., 2011 WL 6016048, *4–5 (Del. Ch. Nov. 30, 2011) (same for
City of Wilmington); Reeder v. Del. Dep’t of Ins., 2006 WL 510067, at *16 (Del. Ch.
Feb. 24, 2006) (Strine, V.C.) (same for the Delaware Department of Insurance).

A more recent line of cases has extended the principle to escrow agents who
have bound themselves contractually to comply with a court order addressing the
escrowed funds. See, e.g., Graciano v. Abode Healthcare, Inc., 2024 WL 960946, *9–

24
Even in these contexts, a plaintiff can ground jurisdiction on the need for

equitable relief “[w]here there is a real chance that relief will not be forthcoming

absent [an] injunction,” “[w]here the right requires a remedy bespoke to the facts,” or

“[w]here an ongoing deprivation of rights needs a remedy.”56

10 (Del. Ch. Mar. 4, 2024) (declining to assert equitable jurisdiction over a claim to
release funds from escrow because the plaintiff did nothing to substantiate its fear
that the agent might disobey a court ruling); Elavon, Inc. v. Elec. Transaction Sys.
Corp., 2022 WL 667075, at *4 (Del. Ch. Mar. 7, 2022) (declining to assert equitable
jurisdiction over a contract action where damages would be the primary form of relief
based on the suggestion “that contingent relief, such as an escrow agent gone rogue,
may necessitate an injunction.”). Other decisions have declined to exercise equitable
jurisdiction where it was not likely that a follow-on injunction would be needed. See
CTF Dev., Inc. v. BML Props. Ltd., 2022 WL 42041, *4 (Del. Ch. Jan. 5, 2022) (“[T]he
court will not exercise subject matter jurisdiction over breach of contract actions in
which past breaches are remediable by monetary damages and future breaches are
speculative.”); All. Compressors LLC v. Lennox Indus. Inc., 2020 WL 57897, at *5
(Del. Ch. Jan. 6, 2020) (refusing to issue add-on injunction after finding future breach
of contract “hypothetical” given the facts of the case); Athene Life & Annuity Co. v.
Am. Gen. Life Ins. Co., 2019 WL 3451376, at *8–9 (Del. Ch. July 31, 2019) (declining
to exercise equitable jurisdiction over a quintessential contract action where the
plaintiff did not show the company would disregard a court-declared contractual
construction).

56 Birney, 2022 WL 16955159, at *2; see Atl. Richfield Co. v. Tribbitt, 1975 WL

1260, at *2 (Del. Ch. May 30, 1975) (“Arguendo, if the statutes were invalid as to
Atlantic because of some particular aspect of its business operations, but not
unconstitutional per se, some order preventing enforcement as to Atlantic only would
become necessary. Chancery can do this through injunction; the Superior Court
cannot. I feel that this Court does have jurisdiction.”).

25
This is a case where the court likely will have to use its equitable powers to

craft a bespoke remedy, and a simple declaratory judgment cannot do the job.57 As

the Claim Processors have pointed out, it could well be inequitable to require them to

maintain the Claims Data at their own expense, largely for the benefit of the Repeat

Litigants. An injunction might need to be conditioned on the Repeat Litigants’

agreement to pay the cost of retaining the Claims Data. 58 It also might involve

57 E.g., Clark v. State Farm Mut. Auto. Ins. Co., 131 A.3d 806, 814–15 (Del.

2016) (“Any remedy would necessarily have to take the form of a detailed mandatory
injunction, regulating the circumstances in which State Farm had to meet the thirty-
day deadline and detailing those when it was permitted to proceed more deliberately
so long as it paid the policyholder the statutorily required interest. A declaratory
judgment is not a tool fitting to such an ambitious purpose.” (footnote omitted));
Delawareans for Educ. Opportunity v. Carney, 2018 WL 4849935, at *8 (Del. Ch. Oct.
5, 2018) (exercising jurisdiction where tailored equitable relief was likely necessary;
“A declaratory judgment that required immediate compliance could create a
proverbial train wreck. An equitable decree can be tailored to the facts of the case. It
can thus take into account proposals that the counties may make to solve the
statutory problem (assuming the plaintiffs prove their case) and the time frame for
implementation. This court also can adapt its decree to accommodate changed
conditions. Through the exercise of its equitable jurisdiction, this court will be in a
position to consider the facts and circumstances, balance the equities, and award
carefully crafted relief.” (footnote omitted)).

58 See Samuel L. Bray, Remedies, Meet Economics; Economics, Meet Remedies,

38 J. L. Studies 71, 77 (2018) (discussing conditional injunctions); Douglas Laycock,
The Neglected Defense of Undue Hardship (and the Doctrinal Train Wreck in Boomer
v. Atlantic Cement), 4 J. Tort L., no. 3, 2012, at 3–7 (same from doctrinal angle); G.
Calabresi & A. Melamed, Property Rules, Liability Rules, and Inalienability: One
View of the Cathedral, 85 Harv. L. Rev. 1089, 1105–06 (1972) (same from law-and-
economics angle). See generally JD Heydon, MJ Leeming, & PG Turner, Meagher,
Gummow & Lehane’s Equity: Doctrines & Remedies § 3-050 (5th ed. 2015) (“If the
decree is to be final, equity may impose any condition on the plaintiff that will protect
the legal or equitable rights of the defendant as the price of granting relief.”); see id.
§§ 3-050 to ‑065 (citing examples); Pomeroy § 393d n.7 (“In granting injunctive relief

26
conditions relating to data security and indemnification for data breaches. And it

might be tailored to address different types of data. If the court determines that a

remedy is warranted, these and other will have to be addressed. A declaration

standing alone will not do the trick.

This court possess subject matter jurisdiction based on the initial need for

preliminary injunctive relief. This court also possesses subject matter jurisdiction

based on the Repeat Litigants’ request for permanent injunctive relief.

B. Subject Matter Jurisdiction Over A Bill Of Discovery

Subject matter jurisdiction exists because the complaint implicates a claim

recognized in equity. As explored below, courts of equity in both England and America

have long recognized that a petitioner can file a bill of discovery to obtain or preserve

evidence for use in other proceedings, whether pending or anticipated. 59 “The

jurisdiction of equity to grant discovery in actions at law is too well settled to be

disputed.” 60 When a petitioner seeks a bill of discovery, then subject matter

the court is not restrained by the strict legal rights of the parties but may impose
such terms as are demanded by justice and regard for righteous conduct.”).

59 See infra Part IV. See generally 2 Joseph Story, Commentaries on Equity

Jurisprudence §§ 1480–517 (Melville M. Bigelow ed., 13th ed. 1886) [hereinafter
Story]; Pomeroy §§ 190–215; Geo. Tucker Bispham, The Principles of Equity § 35 (7th
ed. 1905) (1874) [hereinafter Bispham]; George L. Clark, Equity § 420 (1919)
hereinafter Clark].

60 Curran v. Craven, 125 A.2d 375, 377 (Del. Ch. 1956) (Seitz, C.).

27
jurisdiction exists. The evidence ultimately may be insufficient to warrant issuing a

decree, but the court has subject matter jurisdiction to consider the bill.

III. STANDING

The Claim Processors next seek dismissal on the theory that the Repeat

Litigants lack standing to sue. That argument fails as well.

Standing is an aspect of justiciability. Courts use standing and other

justiciability doctrines like ripeness and mootness to assess whether the court should

refrain from entertaining a claim that it otherwise would have subject matter

jurisdiction to address.61 When ruling on a justiciability issue, a court assumes that

the underlying claim is valid and asks whether the court should still decline to hear

it.62

“The term ‘standing’ refers to the right of a party to invoke the jurisdiction of

a court to enforce a claim or to redress a grievance.”63 Standing is concerned “only

with the question of who is entitled to mount a legal challenge and not with the merits

of the subject matter of the controversy.”64

61 See Gandhi-Kapoor, 307 A.3d at 341–42.

62 W. Palm Beach Firefighters’ Pension Fund v. Moelis & Co., 310 A.3d 985, 991

(Del. Ch. 2024).

63 Dover Hist. Soc’y v. City of Dover Plan. Comm’n, 838 A.2d 1103, 1110 (Del.

2003).

64 Stuart Kingston, Inc. v. Robinson, 596 A.2d 1378, 1382 (Del. 1991).

28
The standing inquiry under Delaware law differs from the standing inquiry

under federal law. “Unlike the federal courts, where standing may be subject to stated

constitutional limits, state courts apply the concept of standing as a matter of self-

restraint to avoid the rendering of advisory opinions at the behest of parties who are

‘mere intermeddlers.’”65 Justiciability doctrines technically do not limit state courts,

because state courts draw their jurisdiction from the original sovereignty of the

several states as governments with plenary and unenumerated powers.66 Standing

in the state courts is predominantly discretionary and prudential.67

A. Standing By Analogy To Federal Law

The principles for analyzing standing under federal law provide a starting

point for “for determining standing to bring a case or controversy within the courts of

Delaware.”68 Under the federal standard, a plaintiff must establish (i) an injury to a

legally protected interest and (ii) demonstrate that the interest they seek to vindicate

65 Dover Hist. Soc’y, 838 A.2d at 1111 (quoting Stuart Kingston, 596 A.2d at

1382); Gandhi-Kapoor, 307 A.3d at 341.

66 Gandhi-Kapoor, 307 A.3d at 341; see generally John Dimanno, Beyond
Taxpayers’ Suits: Public Interest Standing in the States, 41 Conn. L. Rev. 639, 658–
63 (2008) (collecting authorities); Randy J. Holland, State Constitutions: Purpose and
Function, in The Delaware Constitution of 1897: The First One Hundred Years 3, 13–
14, 16 (Randy J. Holland & Harvey Bernard Rubenstein eds., 1997).

67 In re Del. Pub. Schs. Litig., 239 A.3d 451, 510 (Del. Ch. 2020); Stuart
Kingston, 596 A.2d at 1382 (“[S]tate courts apply the concept of standing as a matter
of self-restraint to avoid the rendering of advisory opinions at the behest of parties
who are ‘mere intermeddlers.’”).

68 See Dover Hist. Soc’y, 838 A.2d at 1110–11.

29
is “arguably within the zone of interest to be protected or regulated by the statute or

constitutional guarantee in question.”69

The injury element is itself multi-faceted:

(1) the plaintiff must have suffered an injury in fact—an invasion of a
legally protected interest which is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical;

(2) there must be a causal connection between the injury and the conduct
complained of—the injury has to be fairly traceable to the challenged
action of the defendant and not the result of the independent action of
some third party not before the court; and

(3) it must be likely, as opposed to merely speculative, that the injury
will be redressed by a favorable decision.70

The Delaware courts apply this test flexibly and with sensitivity to policy

considerations.71 In this case, standing exists under the federal framework.

1. Injury In Fact

The first issue for the federal standing analysis is whether the Repeat

Litigants have identified a threatened injury in fact, framed as an invasion of a

legally protected interest which is (a) concrete and particularized and (b) actual or

69 Gannett Co. v. State, 565 A.2d 895, 897 (Del. 1989).

70 Dover Hist. Soc’y, 838 A.2d at 1110 (formatting altered and internal
quotation marks omitted); accord Oceanport Indus., Inc. v. Wilm. Stevedores, Inc.,
636 A.2d 892, 904 (Del. 1994).

71 See, e.g., In re Orchard Enters., Inc. S’holder Litig., 2014 WL 4181912, at *12

(Del. Ch. Aug. 22, 2014); In re Aristotle Corp., 2012 WL 70654, at *2 (Del. Ch. Jan.
10, 2012) (Strine, C.); Andra v. Blount, 772 A.2d 183, 189–90 (Del. Ch. 2000) (Strine,
V.C.).

30
imminent, not conjectural or hypothetical. The complaint satisfies those

requirements.

The complaint adequately pleads that the Repeat Litigants are constantly

embroiled in asbestos litigation. The complaint adequately pleads that the Repeat

Litigants regularly seek Claims Data from the Claim Processors so they can defend

against asbestos claims. The complaint adequately pleads that if the Claim

Processors implement the Data Policies, then the bulk of the Claims Data will be

destroyed, and the Repeat Litigants will no longer have access to it. As a result, they

will be unable to defend cases effectively. They will face greater liability and settle

more cases for higher amounts than if the information remained available. That

injury is sufficiently concrete, particularized, actual, and imminent.

The Claim Processors argue that the alleged injury is “entirely hypothetical

and conjectural,”72 but it is difficult to understand how those adjectives could be apt.

The Claim Processors have stated that they will implement the Data Policies, and

the implementation will have the identified effects.

By contrast, the Claim Processors have a legitimate argument over whether

the destruction of the Claims Data invades a legally protected interest. A third party

generally does not have any ability to specify what information another party must

retain or on what terms. An obligation to retain information might exist under a

72 Opening Br. 22 (internal quotation marks omitted).

31
statute or regulation, or under a contract, but otherwise it arises only when a party

anticipates litigation.

The receipt of a subpoena triggers a duty to preserve relevant information. 73

Here, the complaint sufficiently alleges that asbestos litigation is effectively

omnipresent and that the Repeat Litigants consistently subpoena the Claims

Processors for information. It is reasonably conceivable that the Claims Processors

have an ongoing obligation to retain the Claims Data because they must reasonably

anticipate litigation in which the Claims Data will be sought.

73 In re Stillwater Asset Backed Offshore Fund Ltd., 2017 WL 1956848 (Bankr.

S.D.N.Y. May 10, 2017) (“The formal service of the court-authorized discovery
subpoenas plainly imposed upon Rohan an affirmative obligation to preserve and to
produce the subpoenaed materials.”); United States v. Grant, 2008 WL 678553, at *2
(S.D.N.Y. Mar. 11, 2008) (“[W]e remind Ms. Watkins that, having been served with a
subpoena, she is required by law to preserve all documents arguably responsive to
the subpoena.”); Ervine v. S.B., 2011 WL 867336, at *2 (N.D. Ill. Mar. 10, 2011) (“The
subpoenaed third parties additionally are to preserve any and all responsive
information sought by the subpoena based on the common law duty to preserve
evidence once ‘the party has notice that the evidence is relevant to litigation or when
a party should have known that the evidence may be relevant to future litigation.’”
(citing Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir.2001)). See
generally 4 Bus. & Com. Litig. Fed. Cts. Rule 45: Nonparty discovery § 33:23, Westlaw
(5th ed., database updated Nov. 2024) (“Rule 45 can be used by a party to seek
discovery of relevant ESI in the possession of a nonparty. The Rule, in effect, requires
both the party seeking discovery and the responding party to address and weigh
various factors. . . . The third party weighs its obligation to preserve potentially
relevant information and a possible motion to compel production against the burdens
of preservation, collection, review, and production, including other factors such as
confidentiality and personal privacy issues. . . . Although nonparties typically do not
have a duty to preserve ESI based on foreseeability of litigation, a Rule 45 subpoena
may serve as a preservation trigger.”).

32
The Claim Processors also have a reasonably conceivable interest in the

information as trust beneficiaries. A trust beneficiary is “[a] person for whose benefit

property is held in trust.”74 The trust agreements governing the settlement trusts

anticipate that asbestos defendants like the Repeat Litigants will pay amounts to

Direct Claims, then seek contribution or indemnification from the settlement trusts.

The trust agreements identify the claimants seeking contribution and

indemnification as Indirect Claimants and make them trust beneficiaries. The trust

agreements require that the trusts be managed so that holders of both Direct and

Indirect Claims are treated “fairly, equitably and reasonably in light of the limited

assets available to satisfy such claims.” 75 As Indirect Claimants and trust

beneficiaries, the Repeat Litigants have an interest in the Claims Data so they can

pursue their contribution claims. The complaint adequately pleads that by

implementing the Data Policies and destroying the Claims Data, the trustees are

inequitably favoring Direct Claimants over Indirect Claimants, in violation of their

duties to all claimants. The complaint therefore pleads that the destruction the

Claims Data invades a legally protected interest belonging to the Repeat Litigants.

74 Restatement (Third) of Trusts § 3 (A.L.I. 2003).

75 See, e.g., Answering Ex. A § 1.2 [hereinafter Owens Corning Trust
Agreement] (requiring all Personal Injury Trust Claims as defined in the Chapter 11
plan to be treated alike); Owens Corning Plan §§ 1.25, 1.140, 1.202 (defining
“Asbestos Personal Injury Claim” to include “Indirect Asbestos PI Trust Claim”).

33
The Claim Processors argue that even if the Repeat Litigants could be Indirect

Claimants, the Repeat Litigants have not alleged specific indirect claims for which

they currently seek Claims Data. It is reasonably conceivable that given the nature

of asbestos litigation, the Repeat Litigants presently enjoy the status of Indirect

Claimants. Moreover, the existence of a present claim is not required. The trust

agreements define Indirect Claims to include “present or future” rights to payment,

“whether or not the facts of or legal basis . . . are known or unknown,” whether

asserted by any person “who has been, is or maybe a defendant” in an asbestos

lawsuit, and whether the liability is for “reimbursement, contribution, subrogation or

indemnification of any portion of any damages such Person has paid or may pay to

the plaintiff in such action.”76 The Repeat Litigants possess Indirect Claims under

that definition and qualify as Indirect Claimants. Under these provisions, the Repeat

Litigants are trust beneficiaries and have a legally protected interest in the Claims

Data.

The Claim Processors also argue that the Repeat Litigants have not identified

specific Claims Data that needs to be preserved. The Repeat Litigants do not know

what specific Claims Data they need or when specific asbestos plaintiffs will sue, but

they know that many asbestos plaintiffs will sue and that they will need Claims Data

to defend those cases. By analogy, meteorologists cannot foresee where it will rain

76 See, e.g., Owens Corning Plan §§ 1.142, 1.140, 3.4(d)(ii) (channeling all direct

and indirect claims exclusively to the asbestos trust); see also Answering Br. 22 n.14
(citing trust governing documents for other Claim Processors) .

34
next month. They still know that at any one time, there are approximately 1,800

rainstorms happening across the globe, and they can say that rainstorms happen

more often in some areas (tropical and temperate zones) than others (arid and cold

zones). The Repeat Litigants are in a similar position; they know they need rain gear.

The Claim Processors are like competing meteorologists who claim no one should buy

raingear unless they can show it is raining where they are right now.

The Repeat Litigants have met the injury-in-fact requirement that would apply

under federal law.

2. Causation

The second issue for the federal standing analysis is causation. The injury

must be sufficiently traceable to the defendant and not the result of independent

action by a third party.

This issue is easy. The threat of injury exists because the Claim Processors

have adopted the Data Policies and plan to implement them. Doing so would result

in the destruction of the vast majority of the Claims Data. There is a direct line from

the Claim Processors’ action to the injury the Repeat Litigants face.

The Claim Processors argue the implementation of the Data Policies and the

destruction of the Claims Data cannot cause any injury because the Repeat Litigants

can easily obtain relevant Claims Data from the asbestos plaintiffs themselves. As

described in the Factual Background, the complaint’s factual allegations support a

quite different inference. The complaint explains why asbestos plaintiffs cannot and

do not provide meaningful information about exposures to other asbestos-related

35
products or the relative severity of those exposures. The complaint’s allegations

support an inference that the Claims Data is a unique resource and that the

implementation of the Data Policies will cause specific and direct harm to the Repeat

Litigants.

3. Redressability

The last issue for the federal standing analysis is redressability. The court

must evaluate whether a favorable decision will address the threatened injury.

This issue is also easy. If the court finds that the Claim Processors must

preserve the Claims Data and enjoins them from implementing the Data Policies, the

Repeat Litigants will no longer face the threat of injury that animates this lawsuit.

Redressability is satisfied.

B. Standing In Equity

To reiterate, the different jurisdictional reach of state courts and the plenary

authority of state sovereigns means that federal standing law does not strictly limit

the ability of a state court to hear a case. Where traditional principles of equity

recognize that a particular party can bring a claim, standing to bring that claim

exists, independent of the federal test.

As explored below, a petitioner can file a bill of discovery in a court of equity to

obtain and preserve evidence for use in other proceedings, whether pending or

36
anticipated.77 If the petitioner can plead the requirements for a bill of equity, then

the petitioner can proceed. Standing exists if the petitioner can state a claim on which

relief could be granted. Here, the Repeat Litigants can state a claim for a bill of

discovery. Standing in equity therefore exists.

IV. RULE 12(B)(6)

Last, the Claim Processors have moved to dismiss the complaint under Rule

12(b)(6) for failing to state a claim on which relief can be granted. When considering

a Rule 12(b)(6) motion, the court (i) accepts as true all well-pled factual allegations in

the complaint, (ii) credits vague allegations if they give the opposing party notice of

the claim, and (iii) draws all reasonable inferences in favor of the plaintiff. Dismissal

is inappropriate “unless the plaintiff would not be entitled to recover under any

reasonably conceivable set of circumstances.”78 Here, the complaint states reasonably

conceivable claims. That does not mean the court will grant the relief sought. It

simply means that the case can move past the pleading stage.

The Repeat Litigants’ claim bears a close filial resemblance to a longstanding—

although now somewhat forgotten—claim in equity. Through a bill of discovery, a

court of equity could deploy its equitable powers to assist the petitioner in obtaining

77 See infra Part IV. See generally Story §§ 1480–517; Pomeroy §§ 190–215;

Bispham § 35; Clark § 420.

78 Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Hldgs. LLC, 27 A.3d 531,

535 (Del. 2011).

37
evidence for use in another pending or anticipated proceeding.79 The bill served to

“facilitate proof, . . . i.e., to make proof easier” 80 and to “assist and promote the

administration of public justice in other courts.” 81 Although rarely used after the

adoption of modern rules of civil procedure, “a majority of courts which have

addressed the issue have recognized the continued existence of the independent

action for discovery known as the equitable bill of discovery, to authorize discovery

outside of the rules in limited situations for use in a pending action or an action about

to be brought.”82

To plead a claim for a bill of discovery, a petitioner must demonstrate an

interest in a pending or anticipated case, articulate how the evidence sought is

material to the case, and show that the evidence cannot be obtained effectively,

conveniently, or completely through other means, such as through discovery in

principal case. 83 The last element represents an issue-specific application of the

79 See generally Story §§ 1480–517; Pomeroy §§ 190–215; Bispham § 35; Clark

§ 420.

80 See Goldberg v. Reg’l Sch. Dist. #18, 2014 WL 7662507, at *3–4 (Conn. Super.

Ct. Dec. 17, 2014) (citation omitted).

81 Story § 1488.

82 Rupert F. Barron, Existence and Nature of Cause of Action for Equitable Bill

of Discovery, 37 A.L.R. 5th 645 (1996).

83 See, e.g., Story §§ 1490, 1493, 1497, 1508, 1511; Pomeroy §§ 197, 197a, 198;

accord Goldberg, 2014 WL 7662507, at *3–4 (stating equitable bill of discovery is
intended to make proof easier and is “only precluded if the alternate remedy is
specific, effective, convenient and complete”).

38
general principle that equity will not intervene when an adequate remedy exists at

law. If the petitioner can obtain the evidence in the principal case, then the petitioner

has an adequate remedy at law.

The “equitable bill of discovery afforded the primary means of discovery in civil

litigation prior to the adoption of the Federal Rules of Civil Procedure and state rules

and statutes based thereon.”84 Its origins lay in “old, rigid common-law rules under

which an adverse party could not be compelled to produce documents for use in

litigation.”85 In response, “equity courts created the bill of discovery as an exercise of

auxiliary jurisdiction to compel discovery in aid of actions at law.”86

The complaint states a claim under that venerable doctrine.

A. The Complaint Pleads The Elements For A Bill Of Discovery

To reiterate, a petitioner seeking to plead a claim for a bill of discovery must

demonstrate an interest in a pending or anticipated case, articulate how the evidence

sought is material to the case, and show that the evidence cannot be obtained

effectively, conveniently, or completely through other means, such as through

discovery in the principal case. The complaint pleads facts that establish each

element for purposes of pleading-stage analysis.

84 Barron, supra, § 2 (citing Pomeroy § 193).

85 Id.

86 Id.

39
1. The Existence Of Pending Or Anticipated Actions

The Repeat Litigants first must plead facts supporting their interest in a

pending or anticipated case. The Repeat Litigants have more than satisfied this

requirement.

The Repeat Litigants have credibly alleged that they are routinely named as

defendants in asbestos litigation. Many asbestos actions against the Repeat Litigants

are pending. Asbestos plaintiffs constantly file more actions against the Repeat

Litigants. They have a right to defend those cases.

The Repeat Litigants have also shown that they routinely submit claims for

contribution to the Claim Processors. As Indirect Claimants, the Repeat Litigants

have a right to pursue those claims. Although the channeling injunctions force those

claims out of the court system and onto the alternative dispute resolution track

established by each settlement trust, that does not change the fact that the Repeat

Litigants have a legal right that they can pursue.

The Claim Processors respond by contending that a bill of discovery is only

available to provide discovery for a pending case. That misstates the law. While many

bills of discovery did relate to an already pending action, that was never a

requirement. 87 As Pomeroy observes, “The action in aid of which the discovery is

sought may be pending; but this is not necessary. It is sufficient if the plaintiff in the

bill for a discovery shows that he has a right to maintain or defend an action in

87 Story § 1483; Pomeroy § 197b.

40
another court,”88 which may be “pending or anticipated.”89 Justice Story states the

rule similarly: “[N]either does it constitute any objection to a bill of discovery that the

suit, which it is to aid, has not yet been commenced; for it may be indispensable to

enable the party rightly to frame his action and declaration.”90

That said, equity will not countenance an unjustified fishing expedition.

According to Pomeroy, the petitioner must show that he “has a right to maintain or

defend an action in another court, and that he is about to sue or is liable to be sued

therein, although no action is yet commenced.” 91 A “real cause of action” must be

“pending or imminent.” 92

The Repeat Litigants have satisfied the imminence requirement. The

complaint supports an inference that they face an ongoing barrage of asbestos claims

for which they seek discovery from the Claim Processors. As they regularly settle

claims or get adverse judgments, they seek contribution from the Claim Processors.

The close connection to an imminent action exists.

88 Pomeroy § 197b.

89 Id. § 198.

90 Story § 1495.

91 Pomeroy § 197b.

92 Id.

41
2. The Materiality Of The Evidence

The Repeat Litigants next must plead facts supporting a reasonably

conceivable inference that the evidence sought is material to the case. No one

meaningfully disputes this element.

The complaint supports a reasonable inference that the Claims Data is the key

to defending asbestos lawsuits. Were that not enough, at least fifteen states have

enacted Trust Transparency Statutes93 to make clear that Claims Data is relevant

and admissible in asbestos lawsuits.94 The courts that manage significant asbestos

dockets have entered case management orders that allow solvent defendants to seek

Claims Data.95

The Garlock decision points to the same outcome. In a liability estimation

proceeding, the bankruptcy court found that an insolvent asbestos defendant seeking

to establish a settlement trust had been unable to obtain Claims Data consistently

when settling cases. The court held that the absence of Claims Data rendered the

93 Ala. Code §§ 6-5-690 to -694 (2019); Ariz. Rev. Stat. § 12-782 (2018); Iowa

Code §§ 686a.1–.9 (2018); Kan. Stat. Ann. §§ 60-4912 to -4918 (2018); Mich. Code
Ann. § 600.3010–.3016 (2018); Miss. Code §§ 11-67-1 to -15 (2018); N.D. Cent. Code
§§ 32-46.1-01 to -05 (2018); Ohio Rev. Code Ann. §§ 2307.951–.954 (West 2018); Okla.
Stat. tit. 76, §§ 81–89 (2018); S.D. Codified Laws §§ 21-66-1 to -11 (2018); Tenn. Code
§§ 29-34-601 to -609 (2018); Tex. Civ. Prac. & Rem. Code Ann. §§ 90.051–.058 (West
2018); Utah Code §§ 78b-6-2001 to -2010 (2018); W. Va. Code §§ 55-7f-1 to -11 (2018);
Wis. Stat. § 802.025 (2018); see also N.C. Sess. L. 2018-4 (codified in rules of evidence
and civil procedure).

94 See Compl. ¶¶ 56–57.

95 Id. ¶ 55 & nn.9–10.

42
debtor’s history of asbestos litigation settlements sufficiently unreliable that it could

not be used as a source to estimate the debtor’s total asbestos liability.96 Instead, the

court relied on an estimate ten time lower that included “job histories [and] asbestos

exposure information relating to [the debtor]’s and third-parties’ products.”97 That is

the type of information the Claims Data contains.

3. The Inability To Obtain The Evidence From Other Sources

The Repeat Litigants finally must plead facts supporting a reasonably

conceivable inference that the evidence cannot be obtained effectively, conveniently,

or completely through other means, such as through discovery in the principal cases.

This element represents an issue-specific application of the general principle that

equity will not act when an adequate remedy exists at law. Consistent with that rule,

a court of equity will not entertain a bill of discovery if the court presiding over the

principal case (or which will preside over the anticipated case) is “itself competent to

grant the same relief.”98

Here, the problem is not that the court presiding over an asbestos liability

proceeding cannot issue subpoenas to the Claim Processors (or authorize their

issuance). The problem is that if the Claim Processors implement the Data Policies,

96 See Garlock, 504 B.R. at 94–95 (“[T]he settlement history data does not

accurately reflect fair settlements because exposure evidence was withheld.”).

97 See id. at 74, 95.

98 Story § 1495.

43
then all but the most recent one year’s worth of Claims Data for resolved claims will

be destroyed. At that point, no court will be able to obtain the evidence from the Claim

Processors. By definition, it will be impossible to obtain the evidence.

The complaint pleads facts supporting a reasonable inference that the Repeat

Litigants cannot obtain comparable information from other sources. They cannot

obtain it as effectively, conveniently, or completely as from the Claims Processors.

The Claim Processors primarily argue that the asbestos plaintiffs could

provide the information. As discussed in the Factual Background, the complaint

pleads facts supporting the inference that asbestos plaintiffs rarely will be able to

provide the necessary information because (1) the nature of asbestos injuries creates

inherent uncertainty about when exposures may have occurred, their severity, and

which products were involved, (2) long latency periods mean that memories fade, and

(3) asbestos personal injury lawyers typically refresh their clients’ recollections only

about exposures involving the named defendants, so the injured claimants lack

information about other exposures.

Under these circumstances, establishing alterative exposures requires data

establishing patterns involving particular industries, job sites, time periods, and

manufacturers. For solvent tort system defendants like the Repeat Litigants, the

Claims Data constitute the only realistic source of meaningful information that can

be used for that purpose

44
B. The Claim Processors’ Challenges To The Bill Of Discovery

Having pled all three requirements, the Repeat Litigants have stated a claim

for a bill of discovery. The Claim Processors, however, advance other objections. All

fail.

1. The Contention That The Bill Of Discovery No Longer Exists

The Claim Processors start by questioning whether the Court of Chancery still

possesses the power to issue a bill of discovery. They contend that modern discovery

has rendered the bill of discovery obsolete.99 That is incorrect.

A majority of courts have held that the bill of discovery survives absent an

express prohibition.100 Delaware has not enacted an express prohibition, which would

require a constitutional amendment.

The Delaware Constitution of 1897 establishes this court’s jurisdiction. 101

Under that document, the Court of Chancery’s equity jurisdiction encompasses “all

the general equity jurisdiction of the High Court of Chancery of Great Britain as it

existed prior to the separation of the colonies.”102 At the time of the separation, the

English Court of Chancery had been entertaining bills of discovery since before the

99 Defs.’ Suppl. Br. 3–7.

100 Barron, supra, § 2.

101 Del. Const. art. IV, § 10.

102 DuPont v. DuPont, 85 A.2d 724, 727 (Del. 1951).

45
reign of Elizabeth I. 103 That power crossed the Atlantic and was constitutionally

vested in the Delaware Court of Chancery.

The General Assembly can only limit the Court of Chancery’s jurisdiction by

statute if the legislature substitutes a legal remedy that “is both adequate and

exclusive.” 104 Absent constitutionally sufficient legislative action, “Chancery

jurisdiction remains, notwithstanding . . . a remedy elsewhere that may be adequate,

unless the new remedy is equivalent and is expressly made exclusive.” 105 “[T]he

historical equitable jurisdiction of the Court of Chancery to hear a matter cannot be

divested simply by the legislative enactment of a new statute addressing the same

subject matter.”106

Here, the General Assembly has never enacted legislation attempting to limit

the Court of Chancery’s power to issue a bill of discovery. The Court of Chancery has

adopted rules modeled on the Federal Rules of Civil Procedure, and those rules

contemplate broad discovery. So have the other Delaware trial courts. Those rules

create an adequate remedy at law in most circumstances that obviates the need for a

103 Pomeroy § 192.

104 Douglas v. Thrasher, 489 A.2d 422, 426 (Del. 1985) (citing DuPont, 85 A.2d

at 729–30).

105 Diebold, 267 A.2d at 591.

106 In re Arzuaga-Guevara, 794 A.2d 579, 585 (Del. 2001).

46
bill of discovery, but they do not eliminate the court’s jurisdiction to issue a bill of

discovery when warranted.107

Events at the federal level confirm that the adoption of modern procedural

rules that address discovery does not foreclose the traditional power of equity to grant

a bill of discovery. In 1970, the Supreme Court of the United States amended Federal

Rule of Civil Procedure 34 to “make clear that the rule does not preclude an

independent action for analogous discovery against persons not parties,”108 thereby

addressing some practitioners’ concern that the rules had preempted the traditional

bill.109 In 1991, after the justices promulgated Rule 45 to authorize subpoenas to third

parties, the Advisory Committee added an additional note to Rule 34 to confirm that

the adoption of Rule 45 and corresponding changes to Rule 34 were “not intended to

107 The Claim Processors also observes that Delaware does not statutorily
permit pre-suit discovery. Defs.’ Suppl. Br. 14–15. The absence of a statutory
mechanism eliminates the need to analyze whether the General Assembly sought to
make the mechanism exclusive and whether it is constitutionally adequate. The fact
that no statutory mechanism exists supports—rather than undermines—the
continuing vitality of the bill of discovery under circumstances where an adequate
remedy at law does not exist.

108 Fed. R. Civ. P. 34 advisory committee’s note to 1970 amendment.

109 Id. (“Comments from the bar make clear that in the preparation of cases for

trial it is occasionally necessary to enter land or inspect large tangible things in the
possession of a person not a party, and that some courts have dismissed independent
actions in the nature of bills in equity for such discovery on the ground that Rule 34
is preemptive. While an ideal solution to this problem is to provide for discovery
against persons not parties in Rule 34, both the jurisdictional and procedural
problems are very complex. For the present, this subdivision makes clear that Rule
34 does not preclude independent actions for discovery against persons not parties.”).

47
preclude an independent action for production of documents or things or for

permission to enter upon land, but such actions may no longer be necessary in light

of this revision.”110

The Claim Processors cite two Delaware cases to argue modern discovery

devices have rendered traditional bills of discovery unnecessary in most

circumstances, but that is not controversial. In 1935, thirteen years before the

Delaware courts adopted modern procedural rules, the Superior Court observed that

[i]t is unnecessary for [the Superior Court] to consider the limitations
existing at common law respecting the production of documents nor to
trace the development of equitable Bills of Discovery, nor the statutory
equivalents therefor. It is sufficient that the Delaware statute expressly
grants to this Court that plenary power theretofore exclusively exercised
by the Court of Chancery as to the production of documents.111

The statute in question—since repealed and folded into the Superior Court rules—

gave the Superior Court the power to order the discovery being sought, so a bill of

discovery was not warranted.112 The statute granted authority to the Superior Court;

it did not limit equity’s jurisdiction.

110 Fed. R. Civ. P. 34 advisory committee’s note to 1991 amendment. Federal

courts have allowed bills of discovery after the addition of Rule 45. Barron, supra,
§ 20. In some cases, federal courts have denied bills of discovery because Rule 45 is
adequate. Id. § 19. That does not mean jurisdiction to issue a bill of discovery in
appropriate circumstances no longer exists.

111 Wise v. Western Union Telegraph Co., 178 A. 640, 641 (Del. Super. 1935).

112 Del. C. 1915, § 4228 (“At any time during the pendency of actions at law,

the [Superior] Court, on motion and due notice thereof, may order a party to produce
books, or writings, in his possession, or control, which contain evidence pertinent to
the issue, under circumstances in which the production of the same might be

48
In 1956, eight years after the adoption of modern procedural rules, this court

issued what was previously the most recent Delaware decision to address a bill of

discovery.113 The court dismissed the bill because the Superior Court could subpoena

the record being sought.114 The case did not hold that bills of discovery were no longer

available; it held that a party cannot obtain a bill of discovery where an adequate

remedy exists at law.115

The bill of discovery remains viable and potentially available. The question is

whether its requirements have been met. For the reasons already discussed, the

complaint’s allegations satisfy those requirements at the pleading stage.

2. The Contention That The Courts Must Be In The Same
Jurisdiction

Next, the Claim Processors suggest that a court should only grant a bill of

discovery if in the same jurisdiction as the court presiding or expected to preside over

compelled by a Court of Chancery; and the Court making such order, shall have the
same power for enforcing it which is exercised by a Court of Chancery in like cases.”).

113 Curran, 125 A.2d 375.

114 Id. at 377 (“[T]he report is nothing more nor less than the written opinion

of the State Psychiatrist who along with his records is subject to the subpoena power
of the Superior Court.”).

115 Id. (“The jurisdiction of equity to grant discovery in actions at law is too well

settled to be disputed.”).

49
the principal case.116 There does not appear to be any credible support for the same-

jurisdiction argument.

To advance the same-jurisdiction argument, the Claim Processors rely on an

annotation collecting cases on bills of discovery, which states: “At least two modern

courts have held that, where a party seeks a bill of discovery in aid of another

proceeding, the court which has jurisdiction over the main proceeding has exclusive

jurisdiction to grant the bill.”117 That sentence does not posit that the court granting

the bill of discovery must be in the same jurisdiction as the court hearing the

underlying case. It asserts that the court hearing the principal proceeding must

permit the bill of discovery to proceed. Neither of the referenced cases—both Texas

appellate decisions applying a Texas procedural rule118—held that the court granting

116 See Defs.’ Suppl. Br. 5 (“Some such courts also allow it only . . . in the same

jurisdiction where the underlying action is brought . . . .”). They suggest that the
Repeat Litigants should pursue bills of discovery in courts around the world, arguing
that “[i]f there were litigation, it likely would occur in a different jurisdiction, given
that the individuals at issue reside in all 50 states and abroad.” Id. at 7.

117 Barron, supra, § 10.

118 At the time, in 1957, the Texas rule stated: “All trial courts shall entertain

suits in the nature of bills of discovery, and grant relief therein in accordance with
the usages of courts of equity. Such remedy shall be cumulative of all other remedies.
In actions of such nature, the plaintiff shall have the right to have the defendant
examined on oral interrogatories, either by summoning him to appear for
examination before the trial court as in ordinary trials, or by taking his oral
deposition in accordance with the general rules relating thereto.” Tex. R. Civ. P. 737
(repealed).

50
the bill of discovery must be in the same jurisdiction as the court presiding over the

principal case.119

In fact, the rule cited in the annotation appears to be mistaken dictum from

the latter of the two Texas cases. In Moody, the first case, a party to a will contest in

probate court filed a bill of discovery in a Texas district court. The trial court held

that the probate court could grant the same discovery, eliminating the need for the

bill, and the Texas appellate court affirmed.120 Moody did not hold that the probate

court had to approve the bill of discovery.

Ramirez involved a similar scenario. A party to a divorce proceeding in Mexico

sought a bill of discovery in Texas. The trial court denied the bill, finding that the

party “did not prove that the Mexican courts cannot grant a similar discovery

request,” and the Texas appellate court affirmed. 121 But when describing the

applicable law, the court cited Moody for the proposition that “[i]f a party seeks

discovery to aid another proceeding, the court having jurisdiction over the main

119 See Ramirez v. Lagunes, 794 S.W.2d 501, 505 (Tex. App. 1990); Moody v.

Moody Nat. Bank of Galveston, 302 S.W.2d 695, 697–98 (Tex. Civ. App. 1957).

120 Moody, 302 S.W.2d at 697 (“The conclusion is inescapable that within its

jurisdiction over probate matters including will contests the probate court has as
much power, express and implied, to grant the relief sought [under Tex. R. Civ. P.
737] as does a district court in matters over which it has original jurisdiction, and
that the appellant could secure from the probate court all of the relief which he seeks
in this proceeding.”).

121 Ramirez, 794 S.W.2d at 506.

51
proceeding has exclusive jurisdiction to grant discovery relief.” 122 That statement

mischaracterized Moody, which neither asserted that proposition nor reached a

holding that supported it. The statement also makes little sense for a bill of discovery,

which a court of equity can grant when no other action is pending and thus when no

principal court exists that could serve as a discovery gatekeeper.123

The Claim Processors also rely on language from a decision from the Supreme

Court of the United States that quoted Justice Story for the following proposition:

“[C]ourts of equity will not entertain a bill for discovery to assist a suit in another

court, if the latter is, of itself, competent to grant the same relief; for in such a case

the proper exercise of the jurisdiction should be left to the functionaries of the court

where the suit is pending.” 124 That sentence likewise says nothing about the two

courts being in the same jurisdiction. It discusses the same issue on which the Texas

decisions turned: A court of equity only will grant a bill of discovery where the

122 Id.

123 A court that has been asked to issue a bill of discovery likely would take

guidance from a court presiding over the principal dispute as to the legitimate scope
of discovery, just as a court does when asked to exercise its jurisdiction to assist a
sister court by issuing or enforcing a subpoena. See generally H.D.W, Practice or
Procedure for Testing Validity or Scope of the Command of Subpoena Duces Tecum,
130 A.L.R. 327 (1941 & Supp.). But the principal court does not have “exclusive
jurisdiction” over discovery, as Ramirez posits, and Moody does not support that
assertion.

124 Ex parte Boyd, 105 U.S. 647, 657 (1881) (quoting Story § 1495 (alteration in

original)); see Defs.’ Suppl. Br. 6 n.18 (quoting same).

52
petitioner lacks an adequate remedy at law, and if the court presiding over the

principal litigation can grant the discovery, then an adequate remedy exists at law.

The same-jurisdiction rule is not a thing. It does not warrant dismissal.

3. The Contention That The Subject Of The Order Must Be A Party
To A Pending Case

Next, the Claim Processors contend that a bill of discovery can be used only to

obtain discovery from a person who is or will be a party to the principal litigation.

That is not correct.

Historically, bills of discovery were usually directed at an adversary in a

pending or contemplated suit. That was because of the inflexible rule at common law

that parties to an action were “incompetent as witnesses and no means were provided

by which an adverse party could be compelled to produce documents in his or her

possession for the use of his opponent at the trial.”125 But to claim that the bill of

discovery could be directed only to parties treats the most frequent use as if it were

the only use. Although bills of discovery directed to non-parties were and remain less

common, courts have granted them.126

125 27 C.J.S. Discovery § 8, Westlaw (database updated May 2025).

126 Barron, supra, § 6[c]; see Invs. Mortg. Ins. Co. v. Dykema, 598 F. Supp. 666,

668–69 (D. Or. 1984) (granting bill of discovery against non-party); Shorey v. Lincoln
Pulp. & Paper Co., Inc., 511 A.2d 1076, 1077 (Me. 1986) (holding that the court can
grant bills of equity against non-parties); Stokes v. 835 N. Wash. St., LLC, 784 A.2d
1142, 1147 (Md. Ct. Spec. App. 2001) (“We therefore hold that the circuit courts have
the power to order inspection of a non-party’s property on a case-by-case basis
through the equitable bill of discovery.”); Temple v. Chevron U.S.A., Inc., 840 P.2d
561, 564 (Mont. 1992) (explaining that “nothing in Rule 34(c)” precludes ““an

53
In any event, a non-party rule would not mandate dismissal here, because the

Claims Processors are not third parties who have no interest in an asbestos plaintiff’s

action against the Repeat Litigants. The Claims Processors’ pre-bankruptcy

predecessors would have been co-defendants but for their reorganizations and the

channeling injunctions. The Claim Processors still have an obligation to process the

Repeat Litigants’ Indirect Claims for contribution and indemnification.

At a later stage of the case, the court might well not order relief against the

Claim Processors. But the Claim Processors cannot rely on their status as third

parties to the underlying asbestos litigation to obtain dismissal as a matter of law.

4. The Contention That A Bill Of Discovery Will Not Support A
Preservation Order

Next, the Claim Processors argue that a bill of discovery cannot support an

injunction directing them to preserve the Claims Data, rather than an order

independent action against a non-party” when “the discovery is necessary, is not
otherwise obtainable, and serves the interest of justice”); Lefebvre v. Somersworth
Shoe Co., 41 A.2d 924, 927 (N.H. 1945) (holding that the court can grant bill of equity
against non-parties); Davila v. Cont’l Can Co., 500 A.2d 721, 722–23 (N.J. Super. Ct.
App. Div. 1985) (granting bill of discovery against a non-party); Beckwith vs.
Bethlehem Steel Corp., 440 A.2d 1372, 1375 (N.J. Super. Ct. Law Div. 1981)
(formulating balancing test to evaluate whether to grant bill of discovery directed to
a non-party); Arcell v. Ashland Chem. Co., 378 A.2d 53, 71 (N.J. Super. Ct. Law Div.
1977) (“[T]he majority view is that modern rules and statutes relating to discovery do
not abrogate equitable jurisdiction as to bills of discovery, and equity may be resorted
to where effective discovery cannot be obtained under the rules or statutes.”); Leonard
v. Latrobe Area Hosp., 549 A.2d 997, 999 (Pa. Super. Ct. 1988) (“A subpoena duces
tecum or an independent action in equity against the non-parties.”); Wofford v. Ethyl
Corp., 447 S.E.2d 187, 189 (S.C. 1994) (“[T]he plain language of [S.C. Rule Civ. Pro.]
34(c) recognizes that an independent discovery action may be maintained against a
non-party.”).

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compelling production. Although the bill of discovery was mostly commonly used to

obtain discovery, nothing about the bill of discovery limits the court’s remedial powers

to a production order. The Court of Chancery “has broad latitude to exercise its

equitable powers to craft a remedy.”127 The court’s remedial powers “are complete to

fashion any form of equitable and monetary relief as may be appropriate” and “to

grant such other relief as the facts of a particular case may dictate.”128 Put more

poetically, the “protean power of equity” allows a court to “fashion appropriate relief,”

and a court “will, in shaping appropriate relief, not be limited by the relief requested

by plaintiff.”129

127 Hogg v. Walker, 622 A.2d 648, 654 (Del. 1993); accord Berger v. Pubco Corp.,

976 A.2d 132, 139 (Del. 2009) (“[T]he Court of Chancery has broad discretion to craft
an appropriate remedy . . . , the propriety of a court-ordered remedy is ordinarily
reviewed for abuse of discretion.” (footnote omitted)); Reserves Dev. LLC v. Severn
Sav. Bank, FSB, 961 A.2d 521, 525 (Del. 2008) (“The Court of Chancery has broad
discretion to fashion equitable relief.”).

128 Weinberger v. UOP, Inc., 457 A.2d 701, 714 (Del. 1983); accord Whittington

v. Dragon Gp. L.L.C., 2011 WL 1457455, at *15 (Del. Ch. Apr. 15, 2011) (“This Court,
as a court of equity, has broad discretion to form an appropriate remedy for a
particular wrong.”); McGovern v. Gen. Hldg., Inc., 2006 WL 1468850, at *24 (Del. Ch.
May 18, 2006) (“The Supreme Court has emphasized the capacious remedial
discretion of this court to address inequity.”); Cantor Fitzgerald, L.P. v. Cantor, 2001
WL 536911, at *3 (Del. Ch. May 11, 2001) (“[T]his Court, fortunately, has broad
discretion to tailor remedies to suit the situation as it exists.” (internal quotation
marks omitted)). See generally Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
U.S. 1, 15 (1971) (“Once a right and a violation have been shown, the scope of a district
court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility
are inherent in equitable remedies.”).

129 Tex. Instruments Inc. v. Tandy Corp., 1992 WL 103772, at *6 (Del. Ch. May

12, 1992) (Allen, C.).

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The fact that an equitable claim or remedy was traditionally used one way does

not limit equity’s ability to adapt to new circumstances.130

[T]he Chancellor always has had, and always must have, a certain power
and freedom of action, not possessed by the courts of law, of adapting
the doctrines which he administers. He can extend those doctrines to
new relations, and shape his remedies to new circumstances, if the
relations and circumstances come within the principles of equity, where
a court of law in analogous cases would be powerless to give any relief.131

Equity “has an expansive power, to meet new exigencies; and the sole question,

applicable to the point of jurisdiction, must from time to time be[] whether such rights

and wrongs do exist, and whether the remedies [therefore] in other courts, and

especially in the courts of common law, are full, and adequate to redress.”132

Using the court’s equitable powers to impose an injunction requiring

preservation of the Claims Data would not be a stretch. The bill of discovery and

sister mechanisms like the bill to perpetuate testimony133 were used not just to obtain

130 See In re Carlisle Etcetera LLC, 114 A.3d 592, 603 (Del. Ch. 2015) (rejecting

notion that, “because the nascent practice of entity law as it existed at the time of the
colonies’ separation had not yet envisioned LLCs, they fall outside the domain of
equity”); Am. Healthcare Admin. Servs., Inc. v. Aizen, 285 A.3d 461, 491 n.13 (Del.
Ch. 2022) (noting that the “exercise of a court’s equity powers must be made on a
case-by-case basis,” with an “emphasi[s] [on] the need for flexibility”); Holland v.
Florida, 560 U.S. 631, 649–50 (2010) (same).

131 Schoon v. Smith, 953 A.2d 196, 204–05, 205 n.24 (Del. 2008) (quoting
Pomeroy § 60).

132 Id. at 206 (quoting Story § 53 (alterations in original)).

133 Clark § 420–21 (noting bill to perpetuate testimony can be brought where

plaintiff “fears [his legal right] may be injured in some way in some future litigation
by loss of proof; and that he is not in a position to sue immediately at law.”); see also

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evidence but to preserve it.134 An injunction requiring the preservation of evidence

serves the same purpose.

Not surprisingly, courts in other jurisdictions have used the bill of discovery to

require the preservation of evidence. 135 Research has not uncovered any decision

holding or suggesting that an equitable bill of discovery could not support an order

requiring the preservation of evidence.

The Claim Processors’ argument against a preservation order also ignores the

concept of lesser included authority. Ordering the preservation of documents is

generally less intrusive than ordering the production of documents. It would be

counterintuitive to envision that the court has the power to order the broader and

26B C.J.S. Depositions § 36 (“At equity, a bill to perpetuate testimony is an original
bill in anticipation of litigation not instituted or when no suit at law can be instituted
for their protection and preservation at the time the bill is filed.” (footnote omitted)).

134 Story § 1505 (citing the need to “preserve” evidence “in danger of being

lost”).

135 See Lewis v. Weaver, 969 So.2d 586, 587–88 (Fla. App. Ct. 2007) (affirming

trial court’s order requiring a dock owner to preserve and allow inspection of a dock
in its current condition under a bill of discovery; and noting that the order “may also
avoid a spoliation claim later”); Johnson v. Spartanburg Cnty. Sch. Dist. 7, 2008 WL
9846826, at *1 (S.C. Ct. App. Oct. 27, 2008) (affirming grant of equitable bill of
discovery and temporary injunction that required a school district to “maintain,
preserve, and produce” evidence relating to an alleged sexual assault on a school bus);
see also Jeffrey A. Parnes & Jessica Theodoratos, Expanding Pre-Suit Discovery
Production and Preservation Orders, 2019 Mich. St. L. Rev. 651, 655 (2019) (“An
equitable bill of discovery occasionally is employed to preserve other evidence”);
1 Fred Lane, Lane Goldstein Trial Technique § 6:1 n.2, Westlaw (3d ed. Database
updated Sept. 2025) (discussing cases that permitted or denied pre-action discovery).

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more intrusive relief of producing discovery yet not the authority to order the

narrower and less intrusive relief of preserving discovery.

The Repeat Litigants ask the court to use a traditional tool of equity—the

injunction—and apply it to a new circumstance. That is within the court’s power.

5. The Contention That The Repeat Litigants Must Reopen The
Bankruptcy Proceedings And Seek Relief There

Next, the Claim Processors assert that the Repeat Litigants have an adequate

remedy at law because they can ask the bankruptcy courts who approved the

settlement trusts to modify their terms to require that Claims Data be preserved.

That is unnecessary, because there is no dispute over the terms of the settlement

trusts, and no need to modify the agreements governing them. The Claim Processors

already have the authority to preserve the Claims Data; they simply don’t want to

preserve it. Because the authority exists, there is no need to modify the trustee

agreements. The Repeat Litigations challenge whether the trustees are properly

exercising their authority. Just as this court can issue an injunction when directors

have used their authority inequitably, without requiring the corporation to amend its

certificate of incorporation to deprive the directors of the authority to act, so too can

this court address the trustees’ adoption of the Data Policies without an amendment

to the trusts’ governing agreements forbidding their implementation.

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Sending the Repeat Litigants back to the bankruptcy courts is also not as

“complete, practical and efficient”136 as the remedy that this proceeding can provide.

The bankruptcy proceedings are closed, so the Repeat Litigants would have to seek

to reopen them. Because the bankruptcy courts have entered final orders, the Repeat

Litigants likely would have to proceed under one of the narrow grounds contemplated

by Federal Rule of Civil Procedure 60 or its bankruptcy analogs—and the Claim

Processors doubtless would oppose that relief. The Repeat Litigants also would have

to seek relief in each bankruptcy case, rather than the more direct route of filing this

lone action seeking relief against the Claim Processors themselves. That circuitous

process does not provide an adequate remedy at law.

6. The Contention That The Repeat Litigants Failed To Plead A
Specific Claim For A Bill Of Discovery

Finally, the Claim Processors posit that even if a bill of discovery otherwise

would be available, the Repeat Litigants cannot obtain one because they did not

specifically ask for it in their original complaint. That argument seeks to resurrect

the antiquated theory of pleading that the Federal Rules of Civil Procedure and the

Court of Chancery Rules definitively rejected. A party need not use the term “bill of

discovery” in its complaint for the court to hold that the allegations state a claim on

which relief can be granted.137

136 Comdisco, 602 A.2d at 78 (internal quotation marks omitted).

137 See Lubrin v. Hess Oil Virgin Islands Corp., 109 F.R.D. 403, 405 (D.V.I.

1986) (“Although Lubrin did not style his complaint as an equitable bill for discovery,

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The contention that a plaintiff must plead specific causes of action hearkens

back to the theory of the pleadings—i.e., the requirement that a plaintiff must plead

a particular legal theory.138 Under that approach, a complaint had to “proceed upon

some definite theory, and on that theory the plaintiff must succeed, or not succeed at

all.”139 Put differently, a plaintiff had to pick a legal theory at the outset of the case

and stick with it.140 If the facts did not support the theory, then the court would not

grant relief, even if the facts established an entitlement to relief under a different

theory.141

Through a combination of rules, the Federal Rules of Civil Procedure

“effectively abolished the restrictive theory of the pleadings doctrine, making it clear

that it is unnecessary to set out a legal theory for the plaintiff’s claim for relief.”142

Federal Rule of Civil Procedure 8(a) eliminates the concept of “cause of
action”; Rule 8(d) provides that a party may set forth two or more
statements of claim alternatively or hypothetically; [Rule] 15(b) deals a
heavy blow to the doctrine by permitting amendments as late as the trial

he does request equitable injunctive relief seeking the equivalent result. We therefore
find our result in accordance with the few decisions which exist on this subject.”).

138 Trifecta Multimedia Hldgs. Inc. v. WCG Clinical Servs. LLC, 318 A.3d 450,

469–70 (Del. Ch. 2024); HOMF II Inv. Corp. v. Altenberg, 2020 WL 2529806, at *26
(Del. Ch. May 19, 2020), aff’d, 263 A.3d 1013 (Del. 2021).

139 See, e.g., Mescall v. Tully, 91 Ind. 96, 99 (1883).

See generally Fleming James, Jr., The Objective and Function of the
140

Complaint Common Law—Codes—Federal Rules, 14 Vand. L. Rev. 899, 910–11
(1961).

141 See id.

142 Wright & Miller § 1219 (footnote omitted).

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and treating issues as if they had been raised in the pleadings when they
are tried by the express or implied consent of the parties; and [Rule]
54(c) provides that, except in the case of a default judgment, the “final
judgment should grant the relief to which each party is entitled, even if
the party has not demanded that relief in its pleadings.”143

The drafters of the Federal Rules consciously avoided references to pleading a “cause

of action,” a concept typical of prior pleading regimes.144 Instead, the Federal Rules

referred to a “claim” and required only “a short and plain statement of the claim

showing that the pleader is entitled to relief.”145

Through these efforts, the Federal Rules of Civil Procedure dispensed with the

requirement to plead particular legal theories.146 “The federal rules, and the decisions

143 Id. (footnotes omitted).

144 Stephen N. Subrin, How Equity Conquered Common Law: The Federal
Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909, 976 & n.387
(April 1987).

145 See Fed. R. Civ. P. 8(a)(2), 12(b)(6).

146 Skinner v. Switzer, 562 U.S. 521, 530 (2011) (“[U]nder the Federal Rules of

Civil Procedure, a complaint need not pin plaintiff’s claim for relief to a precise legal
theory.”); Wright & Miller §§ 1218–19; id. § 1219 n.8 (collecting authority); see, e.g.,
Johnson v. City of Shelby, 574 U.S. 10, 11 (2014) (per curiam) (reversing dismissal of
complaint for failure to articulate a claim under 42 U.S.C. § 1983; explaining that the
Federal Rules of Civil Procedure rejected the “theory of the pleadings” and “do not
countenance dismissal of a complaint for imperfect statement of the legal theory
supporting the claim asserted”); Higgs v. Carver, 286 F.3d 437 (7th Cir. 2002) (Posner,
J.) (“All that’s required to state a claim in a complaint filed in a federal court is a
short statement, in plain (that is, ordinary, non-legalistic) English, of the legal claim
. . . . The courts keep reminding plaintiffs that they don’t have to file long complaints,
don’t have to plead facts, don’t have to plead legal theories.”); Rarick v. DeFrancesco,
94 F. Supp. 2d 279, 286 (N.D.N.Y. 2000) (“A complaint need not state ‘facts,’ ‘ultimate
facts,’ or even ‘facts sufficient to constitute a cause of action.’”). The decisions in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662

61
construing them, evince a belief that when a party has a valid claim, he should

recover on it regardless of his counsel’s failure to perceive the true basis of the claim

at the pleading stage, provided always that a late shift in the thrust of the case will

not prejudice the other party in maintaining a defense upon the merits.”147

The Delaware courts embraced the new direction charted by the Federal Rules

of Civil Procedure. “In 1948, the Courts of Delaware shook off the shackles of

mediaeval [sic] scholasticism and adopted Rules governing civil procedure modeled

upon the Federal Rules of Civil Procedure.”148 When commenting on the new rules,

Judge Herrmann pointed out“[t]he de-emphasis upon pleadings and the re-emphasis

upon ascertainment of truth is reflected in . . . the almost automatic amendment of

pleadings. Under Rule 15(b), for example, if issues not raised by the pleadings are

tried without objection, they are treated as though raised in the pleadings . . . .”149

(2009), elevated the federal pleading standard from reasonable conceivability to
plausibility; they did not otherwise alter what a plaintiff must plead and do not affect
this line of authority. See Johnson, 574 U.S. at 12. Regardless, the Delaware Supreme
Court has rejected the plausibility standard adopted in Twombly and Iqbal, rendering
those decisions irrelevant. See Cent. Mortg., 27 A.3d at 537.

147 Wright & Miller § 1219 n.14 (internal quotation marks omitted).

148 Daniel L. Herrmann, The New Rules of Procedure in Delaware, 18 F.R.D.

327, 327 (1956) (internal quotation marks omitted).

149 Id. at 338.

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The Delaware Supreme Court has consistently re-affirmed the principle of notice

pleading.150

Here, the complaint did not explicitly contain a request for a bill of discovery,

but the allegations support such a claim, and that is what counts. The failure to

request a bill of discovery explicitly did not prejudice the Claim Processors. They

addressed the substance of the complaint’s allegations in their opening and reply

briefs, and the court entertained supplemental briefing on whether the bill of

discovery provided a helpful framework for the case. The case can proceed past the

pleading stage, and the Claim Processors can mount a defense.

C. The Claim Processors’ Arguments Against An Injunction

As their last Rule 12(b)(6) argument, the Claim Processors turn to the remedy,

loudly proclaiming that the court cannot grant the injunction that the Repeat

Litigants seek. A Rule 12(b)(6) motion challenges whether a plaintiff has stated a

claim on which relief could be granted. The motion does not target the types of relief

that a plaintiff might obtain. A court determines remedies after trial, so a pleading-

stage assessment is usually premature.151 Sometimes, ruling at the pleading stage on

150 See In re GGP, Inc. S’holder Litig., 282 A.3d 37, 54 (Del. 2022); Winshall v.

Viacom Int’l, Inc., 76 A.3d 808, 813 n.12 (Del. 2013); Cent. Mortg., 27 A.3d at 536–37;
Savor, Inc. v. FMR Corp., 812 A.2d 894, 896 (Del. 2002).

151 E.g., Delawareans for Educ. Opportunity v. Carney, 199 A.3d 109, 178–79

(Del. Ch. 2018) (declining to rule on remedies at the pleading stage and writing that
“[w]hether and what kind of remedy issues should be addressed at a future date.”);
Bear Stearns Mortg. Funding Tr. 2006-SL1 v. EMC Mortg. LLC, 2015 WL 139731, at
*17 (Del. Ch. Jan. 12, 2015) (“At the pleadings stage, the court will not rule out the

63
whether a remedy will be available can assist in the simplification of the case and the

formulating of issues for trial, which are important parts of the trial court’s case-

management function.152 This is not one of those cases.

In attacking the Repeat Litigants’ request for an injunction, the Claim

Processors repeatedly protest that the court cannot force them “to serve as a forever,

free, lending library, holding highly sensitive data of individuals with no connection

with, or claims against [the Repeat Litigants].”153 Taken literally, that tendentious

framing sounds persuasive, but the Repeat Litigants dispute the Claim Processors’

characterizations. More importantly, this court has the power to tailor the remedy to

the facts of the case. It also has the power to condition relief on undertakings

necessary to make an award equitable. The court will not award a remedy that would

be inequitable.

The Claim Processors also argue that a denial of their motions to dismiss will

open the floodgates to bills of discovery seeking similar remedies. The “uniqueness of

possibility of other remedies, such as rescissory damages.”); see Ambac Assur. Corp.
v. EMC Mortg. Corp., 2009 WL 734073, at *2 (S.D.N.Y. Mar. 16, 2009) (denying
defendant’s request to strike rescissory damages on the basis that it was premature);
Assured Guar. Mun. Corp. v. UBS Real Est. Secs., Inc., 2012 WL 3525613, at *7
(S.D.N.Y. Aug. 15, 2012) (“It would be premature to strike a remedy at the pleadings
stage.”).

152 See Goldstein v. Denner, 310 A.3d 548, 569–71 (Del. Ch. Jan. 26, 2024)

(discussing trial court’s case management authority); Sunder Energy, LLC v.
Jackson, 2023 WL 8868407, at *16 n.39 (Del. Ch. Dec. 22, 2023) (same); Harris v.
Harris, 289 A.3d 310, 342–43 (Del. Ch. 2023) (same).

153 Defs.’ Suppl. Br. 1.

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asbestos litigation and the challenges it presents to traditional court rules and legal

principles is widely recognized.” 154 To address the complex issues that asbestos

litigation creates, the bankruptcy courts had to improvise, and Congress had to enact

new legislation. Courts with high-volume asbestos dockets have implemented special

discovery procedures, some of which concern Claims Data. The Trust Transparency

Statutes recognize that Claims Data is unique.

This is a unique case. The nature of asbestos litigation and the role of the Claim

Processors drives the outcome. The court’s willingness to entertain this lawsuit does

not suggest that other litigants will be able to state a claim for a bill of discovery,

much less obtain a remedy.

Perhaps the Claim Processors’ arguments about remedy will prove convincing;

they remain free to make them at a later stage of the case. At this stage, the court is

not deciding whether to issue an injunction. The court is only determining whether

the case can proceed past the pleading stage. It can.

V. CONCLUSION

The Repeat Litigants have properly invoked this court’s subject matter

jurisdiction. They have adequately alleged facts to support standing. They have also

stated a claim on which relief can be granted. The Claim Processors’ motions to

dismiss are denied.

154 In re Owens Corning, 305 B.R. 175, 217 (Bankr. D. Del. 2004) (collecting

cases and commentaries).

65