         IN THE SUPREME COURT OF THE STATE OF DELAWARE

 NCM GROUP HOLDINGS, LLC,       §
                                §
      Defendant/Counter-        §           No. 506, 2017
      Plaintiff Below,          §
      Appellant,                §           Court Below—Court of Chancery
                                §           of the State of Delaware
      v.                        §
                                §           C.A. No. 12067
 LVI GROUP INVESTMENTS, LLC, §
                                §
      Plaintiff/Counter-        §
      Defendant Below,          §
                                §
      and                       §
                                §
 NORTHSTAR GROUP HOLDINGS, §
 LLC and SCOTT STATE,           §
                                §
      Counter-Defendants Below, §
      Appellees.

                          Submitted: December 6, 2017
                          Decided: January 17, 2018

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                    ORDER

      This 17th day of January 2018, having considered the notice and supplemental

notice of appeal from an interlocutory order under Supreme Court Rule 42, it appears

to the Court that:

      (1)    In the Court of Chancery, the parties are litigating competing claims of

fraud in connection with a merger. This interlocutory appeal arises from a Court of
Chancery bench ruling, issued on November 1, 2017, that denied Appellant-

Defendant/Counter-Plaintiff Below NCM Group Holdings, LLC’s motion to modify

a stipulated protective order. The protective order, entered on August 29, 2016,

governed the use of discovery material in litigation arising from alleged

misrepresentations in a merger. Paragraph 9 of the protective order provided that

discovery material “shall be used solely for purposes of this litigation and shall not

be used for any other purpose, including … any other litigation or proceedings.”1

NCM sought to modify the protective order so it could use information learned from

discovery material in the Delaware litigation to file complaints in Illinois and New

York against individuals who might not be subject to personal jurisdiction in

Delaware.2

      (2)    The Court of Chancery concluded NCM had not shown good cause for

modification because the opposing parties’ substantial reliance on paragraph 9 of the

protective order in how they handled document production outweighed NCM’s

desire to use discovery material to sue individuals outside of Delaware. The Court

of Chancery also granted Appellee-Counter Defendant Below NorthStar Group

Holdings, LLC’s motion to enter a protective order for the production of highly

confidential privileged discovery material that limited the use of that material to the


1
 Protective Order ¶ 9.
2
 NCM has since sued two of the individuals in New York without relying on the discovery
material.
                                          2
current litigation. On November 13, 2017, NCM filed an application for certification

to take an interlocutory appeal. Appellee-Plaintiff/Counter-Defendant Below LVI

Group Investments, LLC, NorthStar, and Appellee Counter-Defendant Below Scott

State opposed the application.

       (3)    On December 4, 2017, the Court of Chancery denied the application.3

The Court of Chancery concluded that neither of the Rule 42(b)(iii) criteria raised

by NCM—a question of law resolved for the first time in the State or the

considerations of justice—weighed in favor of certification. As to the question of

law, the Court of Chancery held that it properly applied the balancing test set forth

in Wolhar v. General Motors Corp.4 as requested by NCM. As to the considerations

of justice, the Court of Chancery held that NCM should have been aware of the

possibility it might wish to sue the two Illinois individuals at the time of the

protective order because it had alleged in its counterclaims that these individuals

helped LVI commit fraud.

       (4)    We refuse without prejudice NCM’s application for interlocutory

review of the Court of Chancery’s Bench Ruling. As stated in NCM’s application




3
  LVI Group Investments, LLC v. NCM Group Holdings, LLC, 2017 WL 5989047 (Del. Dec. 4,
2017).
4
  712 A.2d 464, 469 (Del. Super. Ct. 1997) (balancing the proposed modification of a protective
order against the opposing party’s reliance upon the order to determine whether the modification
would prejudice the opposing party’s substantial rights).
                                               3
papers, trial is presently scheduled for April 30, 2018.5 According to NCM, the

earliest the statute of limitations could run for the claims it seeks to assert outside of

Delaware is April, 2019.6 Trial court proceedings should be completed well in

advance of the statute of limitations deadline. Thus, at this time, there is no

“substantial issue of material importance that merits appellate review before a final

judgment.”7 If trial court proceedings are delayed, or appellate review cannot be

completed in the normal case, then NCM can renew its application, or move to

expedite an appeal, as the circumstances warrant.

       NOW, THEREFORE, IT IS HEREBY ORDERED that the interlocutory

appeal is REFUSED, without prejudice.

                                                   BY THE COURT:


                                                   /s/ Collins J. Seitz, Jr.
                                                          Justice




5
  NCM Group Holding Inc.’s November 13, 2017 Application for Certification of the Interlocutory
Order Entered On November 1, 2017 ¶ 23.
6
  Id. at ¶ 21.
7
  Supreme Court Rule 42(b)(i).
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