(June 18, 2020) - The ground rules for remote depositions have been set in a closely watched case over whether private equity firm Advent International Corp. must complete its planned $1.9 billion purchase of network security provider Forescout Technologies Inc. despite the COVID-19 pandemic.
Forescout Technologies Inc. v. Ferrari Group Holdings LP et al., No. 2020-0385, stipulation filed, 2020 WL 3105869 (Del. Ch. June 10, 2020).
Unless a particular witness and all parties agree otherwise, all depositions will be held through remote audio or video technology, attorneys for Forescout and Advent subsidiary Ferrari Group Holdings LP agreed in a stipulation filed in Delaware Chancery Court on June 10.
Forescout sued Ferrari in May, alleging the private equity firm subsidiary reneged on a February agreement to take Forescout private for $33 per share. The case is tentatively set for trial beginning July 20 before Vice Chancellor Sam Glasscock III.
Forescout is represented by Wilson Sonsini Goodrich & Rosati, and Morris Nichols Arsht & Tunnell is representing Advent.
The trial could provide one of the first opportunities for a court to weigh in on whether the novel coronavirus represents a “material adverse effect” on a company’s business to relieve a buyer’s duty to go through with the purchase.
Parties to several mergers and acquisitions finalized before the virus took hold have since debated whether shutdown orders and the economic fallout from the pandemic represent an MAE on the seller’s business or otherwise affect the duty to close.
’No private conferences’
The stipulation between attorneys for Forescout and Ferrari on deposition procedures illustrates the logistical challenges of conducting a trial on an expedited schedule while complying with social distancing norms.
According to the agreed-on procedures, the party noticing a deposition may select which remote audio or video technology to use. The deponent, lawyers, court reporter and any client representatives will each participate remotely and separately.
The parties further agreed there will be “no private conferences” with a witness during the deposition, including through text messaging, instant messaging, email or other channels, except to discuss technical or logistical issues or assert a privilege. The restriction ends after the deposition has adjourned for the day, according to the stipulation.
Forescout and Ferrari also agreed that all remotely conducted depositions may be used at trial or any future hearing to the same extent as an in-person deposition.