A recent Delaware Court of Chancery ruling addressed the scope of discovery in connection with a dispute about a failed merger to the extent that “deeply personal” and embarrassing information about a CEO was sought, purportedly in connection with the role the CEO played in the alleged failure of his company to use contractually mandated efforts to close the deal. This short blog post highlights the reasoning in the matter of Albertson Companies, Inc. v. The Kroger Co., C.A. No. 2024-1276-LWW (Del. Ch. Sept. 12, 2025), but is limited to highlighting the reasoning in the court’s decision that may be broadly applicable to other corporate and commercial cases generally.

As an aside, the court does not address, and this short blog post does not expound on, the slightly different situation where irrelevant personal allegations are included in a complaint or other court filings, and the court refuses to strike those public allegations. In that situation, much like dealing with a bully in a school yard, if one does not find suitable means to push back on that abusive behavior, it emboldens the bully.

Key Factual Background

About three months after the merger at issue was blocked on antitrust grounds, the CEO resigned due to personal conduct, unrelated to the business, that according to the official statement, was inconsistent with the business ethics policy of Kroger. The announcement of the resignation emphasized that the conduct of the CEO was not related to the financial performance or operations or reporting of the company, and did not involve any Kroger employees. After a meet and confer as well as proffers presented in confidence for in camera review, the court determined that the requested documents were not discoverable.

Highlights

• The court reviewed the broad scope of discovery under Court of Chancery Rule 26(b)(1) that allows discovery “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action”—but there are limitations.
• The limitations on the scope of discovery include proportionality. The court explained that the conduct about which discovery was sought was “far afield from Kroger’s alleged breach of contractual obligations. Even if tangentially relevant, discovery of sensitive details of [his] personal life risks a needless diversion in this suit.” Id. at 4.
• The court acknowledged that if the performance of the CEO fell short due to personal distractions, the impact of that distraction on the efforts of the company may be pertinent, but the “source of his distraction is immaterial.” Id. at 5.
• The court reasoned that even if the conduct of an individual might breach corporate policy, it is not discoverable in this case if it did not affect “her ability to facilitate regulatory approval for a merger.”
• In its analysis about whether to allow discovery of “private and personal information only peripherally related to the substance of the likely testimony at trial,” the court observed that such requests would probably meet “with a predisposition to treat them as discovery abuse.’” Id. at 7.
• The proportionality requirement in this case revealed that “the potential repercussions of revealing deeply personal information outweigh any slight benefit, given the extensive information about [the CEO’s] performance as CEO that has been or will be produced by Kroger.” Id. at 9.
• The court rejected the argument, as applied to the facts of this case, that even if Delaware courts in commercial litigation routinely require discovery of potentially embarrassing but relevant material about executive misconduct, the “tenuous relevance, if any, of that information is disproportionate to the risk of injecting a burdensome, distracting, and prejudicial issue into the commercial dispute.” Id. at 10.
• In sum, the court concluded that the information sought would be of little probative value. Id. at 11.