The case of the day is Application of Vestolit GmbH (D. Del. 2025). Vestolit GmbH and Celanese Europe B.V. were defendants in a Dutch antitrust lawsuit brought by Shell Chemicals Europe, B.V. They brought an application in Delaware under Section 1782 seeking to serve a subpoena on Shell Chemical LP.

The case illustrates a risk and an ethical issue in Section 1782 practice. The first sentence of the memorandum in support of the application stated that the applicants were seeking leave to serve a subpoena on Shell Chemical LP. It wasn’t as clear as it could have been and perhaps should have been that the applicants were also seeking to serve a subpoena on Marla Kline, Shell Chemical’s president. This issue arises because Section 1782 applications are typically brought ex parte, and so the lawyer’s duty of candor to the tribunal is heightened. In an order to show cause, the judge expressed his displeasure and required the lawyers to explain why they hadn’t violated the ethical rule on candor. The lawyers did respond and were appropriately apologetic for running afoul of the judge’s views of the rule, and the judge ultimately concluded that no one had violated the rules on purpose. I have to say that I think the judge was too severe in his criticism, because the application did explain that the applicants sought to take Kline’s deposition; it simply didn’t highlight that issue sufficiently, in the judge’s view. The moral of the story is that when you are bringing an ex parte application, you need to go above and beyond to make sure that the judge is fully informed of all the material facts, good, bad, or otherwise.

After that contretemps, the judge went on to grant the application in part and deny it in part. He authorized service of the subpoena on Shell, but he denied service on Kline. With regard to Kline, he had one arguably good reason and one not-so-good reason. The good reason was that the applicants had not, in his view, adequately shown that Kline was “found” in Delaware, as the statute requires. This seems right to me, but it is worth noting that when a corporation is a party to an action, it may have an obligation to produce officers for depositions on notice, without the need to serve the officer personally with a subpoena. The not-so-good reason was that the judge was still displeased with the applicants’ initial failure to make clear their intention to take Kline’s deposition. Of course, the judge had discretion whether or not to grant the application. But he had already made his point, and it’s not clear that his point was right the first time he made it. If it were not for the question of whether Kline was “found” in Delaware, I would say that the applicants had an appealable issue.