In re Oxbow Carbon LLC Unitholder Litigation, Consol. CA 12447-VCL

Background

This is a bench trial in consolidated Oxbow Carbon LLC unitholder litigation involving the Koch Parties (William I. Koch and affiliates) and Crestview (private equity–affiliated parties).
R. Robert Popeo, lead Mintz Levin counsel for the Koch Parties and long-involved attorney, was identified as a potential rebuttal witness after testifying roles and extensive documents became central at trial.
Crestview moved to bar Popeo from testifying, arguing (1) he was actually part of Koch’s case-in-chief, (2) he was not timely listed, (3) he violated a sequestration order by attending trial, and (4) the lawyer-as-witness rule (Del. Lawyers’ R. Prof’l Conduct 3.7) forbids his testimony.
The trial’s nontraditional single-testimony sequencing (each witness testified once; witness’s counsel often conducted direct first) blurred which testimony was "case-in-chief" versus rebuttal, complicating formal objections.
The court evaluated whether Popeo’s proposed testimony (advice to Oxbow re operating agreement, internal Mintz Levin analyses, communications with third parties, and conflicts issues) was proper rebuttal, whether notice was adequate, and whether sequestration or ethical rules required exclusion.

Issues

Issue	Plaintiff's Argument (Crestview)	Defendant's Argument (Koch Parties)	Held
Whether Popeo is proper rebuttal witness or part of Koch’s case-in-chief	Popeo is a delayed part of Koch’s case-in-chief and should be precluded as untimely rebuttal	Popeo’s testimony rebuts Crestview’s reliance on subjective understandings, counsel advice, documents and conflicts; thus is proper rebuttal	Court: Popeo is a legitimate rebuttal witness given the trial sequencing and topics challenged; denial of exclusion
Adequacy of notice that Popeo would be called	Koch failed to timely identify Popeo on witness list and surprised Crestview	Koch reserved right to call rebuttal witnesses in pretrial order and expressly identified Popeo 20 days before trial and again with 24-hour notice for rebuttal use	Court: Notice was adequate (reservation plus June 20 email and 24-hour notice); Crestview had opportunity to depose Popeo and prepare
Violation of sequestration rule by Popeo attending trial	Popeo heard trial testimony and had access to transcripts/exhibits, risking shaped testimony; should be excluded	Any prejudice is minimal because Popeo was long-involved, already familiar with the case; court can discount credibility if needed	Court: Sequestration violation alone does not mandate exclusion; no shown prejudice; testimony admissible but credibility may be discounted
Lawyer-as-witness ethical bar under Rule 3.7	Rule 3.7 prohibits lawyer appearing as advocate and witness; allowing Popeo undermines fairness	Popeo was not acting as advocate at trial (he did not handle witnesses); Rule 3.7 exceptions and bench-trial context reduce risk of confusion	Court: Rule 3.7 not implicated because Popeo did not act as advocate at trial; in bench trial fairness concerns are manageable; testimony allowed

Key Cases Cited

Herhal v. State, 283 A.2d 482 (Del. 1971) (discusses general trial order and burden of proof)
Gaston v. State, 234 A.2d 324 (Del. 1967) (trial order and evidence presentation principles)
Grace v. State, 314 A.2d 169 (Del. 1973) (sequestration of witnesses and exceptions)
Fountain v. State, 382 A.2d 230 (Del. 1977) (sequestration violation does not automatically require exclusion)
In re Estate of Waters, 647 A.2d 1091 (Del. 1994) (lawyer-witness restriction and its evolution)
Appeal of Infotechnology, Inc., 582 A.2d 215 (Del. 1990) (standing and prejudice required to enforce Rule 3.7)
Christiana Care Health Servs., Inc. v. Crist, 956 A.2d 622 (Del. 2008) (trial management discretion and judge’s control over procedure)
Universal Athletic Sales Co. v. Am. Gym, Recreational & Athletic Equip. Corp., 546 F.2d 530 (3d Cir. 1976) (court may receive lawyer-witness testimony but its value may be discounted)