Delaware Court of Chancery: Contract Dispute on Discovery Material

COURT OF CHANCERY OF THE STATE OF DELAWARE P AUL A. F IORAVANTI, J R. V ICE C HANCELLOR  L EONARD L. W ILLIAMS J USTICE C ENTER 500 N. K ING S TREET, S UITE 11400 W ILMINGTON, D ELAWARE 19801-3734  Date Submitted: February 26, 2026 Date Decided: March 1, 2026 Tyler J. Leavengood, Esquire Jaclyn C. Levy, Esquire Charles P. Wood, Esquire Megan R. Thomas, Esquire Joshua S. Almond, Esquire Potter Anderson & Corroon LLP 1313 N. Market Street Hercules Plaza, 6 th Floor Wilmington, DE 19801 Timothy Jay Houseal, Esquire Colin A. Keith, Esquire Young Conaway Stargatt & Taylor, LLP Rodney Square 1000 North King Street Wilmington, DE 19801 Jason J. Rawnsley, Esquire Gabriela Z. Monasterio, Esquire Richards, Layton & Finger, P.A. One Rodney Square 920 North King Street Wilmington, DE 19801 RE: ECO Cap., Inc. v. Nivel Pa rts & Mfg. Co., LLC et al., C.A. No. 2026-0173-PAF Dear Counsel: This letter decision resolves plainti ff ECO Capital, Inc.’s (“ECO”) motion challenging defendant Jeffery Allen, Inc.’s (“JAI”) designation of “Highly Confidential” discovery material (the “Motion”). 1 The court grants the Motion. As 1 Dkt. 74.

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 2 of 26 a result, all documents that JAI has designat ed as Highly Confiden tial shall lose that designation and are deemed Co nfidential under the terms of the confidentiality order governing this case. I. FACTUAL BACKGROUND This is a dispute over the sale and di stribution of lithium golf cart batteries. In 2023, defendant Nivel Pa rts & Manufacturing Co., LL C (“Nivel”) became the exclusive wholesale distributor of ECO ba tteries. That arrange ment is documented in a “Distribution Agreement,” under which Ni vel agreed to “not di stribute or sell another lithium battery prim arily intended for use in” golf carts and other personal transportation vehicles. 2 Prior to its specified expiration date, the Distribution Agreement allows either party to termin ate the ag reement without cause or for cause. 3 A termination without cause woul d become effective 180 days following the delivery of a notice of termination. 4 A termination for cause could be invoked in the event of breach and a failure to cure within a specified period. A termination for cause, which is available to a non-br eaching party, is effective immediately. 5 2 Dkt. 81 (“Am. Compl.”) Ex. 1 (“Distribution Agreement”) § 2.2. 3 Id. § 9.2. 4 Id. § 9.2(a). 5 Id. § 9.2(b)(ii).

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 3 of 26 On September 24, 2025, Nivel notifie d ECO that it was terminating the Distribution Agreement without cause. The termination notice acknowledged that Nivel would continue to perform for another 180 days, through March 24, 2026. 6 Unbeknownst to ECO at that time, Nive l had been negotiating to acquire ECO’s competitor, Bolt Energy USA, LLC (“Bolt”), which sold batteries under the Bolt label. On November 12, 2025, Nivel publicly announced that it had acquired Bolt and that it would be selling Bolt batteries. A. The Prior Litigation On November 20, 2025, ECO filed suit in this court alleging Nivel breached the Distribution Agreement and requesting an injunction to prevent Nivel from selling Bolt batteries durin g the 180-day tail period. 7 Later that evening, Nivel purported to terminate the Distribution Agreement for cause, which Nivel claimed was effective immediately, and relieved it from complying with the 180-day tail period. 8 After briefing and argument, the court granted ECO’s motion for a temporary restraining order preventing Nivel from sel ling Bolt batteries. The court entered the 6 Am. Compl. ¶ 27. 7 See C.A. No. 2025-1356 (the “First Action”) Dkt. 1. 8 Am. Compl. ¶ 18.

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 4 of 26 TRO on December 3, 2025, at 4:52 p.m. 9 The TRO was cond itioned on ECO posting a $100,000 bond. 10 ECO deposited the bond amount with the court the next morning and filed a letter on the doc ket at 12:36 p.m. confirmi ng that the bond requirement had been satisfied. 11 The parties then engaged in further expedited discovery and briefing on ECO’s motion for a preliminary injunction. At the start of the December 12 hearing on that motion, the court inform ed the parties that it was scheduling a trial for December 29–30, 202 5. On December 16, 2025, the court granted ECO’s motion for a preliminary injunction, having concluded that “abs ent an injunction, the Defendant’s ability to sell Bolt batte ries, which directly compete with ECO batteries, will continue to cause harm” to ECO. 12 B. The Settlement On December 21, 2025, Nivel and ECO advised the court that they had reached an agreement in prin ciple to settle the litigation, and one day later, the court granted the parties’ stipulated or der to vacate the trial schedule. 13 ECO and Nivel executed their settlement agreement on New Year’s Eve (“Settlement Agreement”). 9 First Action Dkt. 22; Am. Compl. ¶ 21. 10 First Action Dkt. 22; see Am. Compl. ¶ 21. 11 First Action Dkt. 24; see Am. Compl. ¶ 21. 12 First Action Dkt. 112 at 45:18–23. 13 First Action Dkt. 102.

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 5 of 26 It required ECO and Nivel to “continue to abide by the Distribution Agreement,” and specified that: Nivel and anyone acting on Nivel’s behalf, including its subsidiaries and affiliates, shall not distribute or sell any lithium batteries that were not manufactured by ECO and which are primarily intended for use in golf cars, personal transportation vehi cles, and low-speed vehicles . . . through March 24, 2026, as contem plated by Section 2.2 of the Distribution Agreement. 14 Nivel also agreed to pay ECO’s attorney’s fees in the litigation. 15 The Settlement Agreement contained mutual releases a nd an anti-reliance provision stating that: THE PARTIES ACKNOWLEDG E THE CONTESTED AND ADVERSARIAL NATURE OF THE DISPUTE AND STIPULATE THAT IN EXECUTING THIS S ETTLEMENT AGREEMENT THEY ARE NOT RELYING ON ANY REPRESENTATION BY ANY OTHER PARTY OR ITS AGENTS, REPRESENTATIVES, OR ATTORNEYS WITH REGARD TO (1) FACTS UNDERLYING THE DISPUTE; (2) THE SUBJECT MA TTER OR EFFECT OF THIS SETTLEMENT AGREEMENT, AN D (3) ANY OTHER FACTS OR ISSUES WHICH MIGHT BE DE EMED MATERIAL TO THE DECISION TO ENTER INTO THIS SETTLEMENT AGREEMENT. 16 In accordance with the Settlement Ag reement, ECO and Nivel filed a stipulated order dissolving the prelimin ary injunction and di smissing each party’s 14 Am. Compl. Ex. 2 (“Settlement Agreement”) § 1.1(b). 15 Id. § 1.3. 16 Id. § 7.3.

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 6 of 26 claims with prejudice. 17 The court entered the stip ulated judgment on January 6, 2026. 18 C. The New Action On February 12, 2026, ECO filed the present action, based upon information that it learned after executing the Settleme nt Agreement. ECO claims that the Settlement Agreement was the product of fra ud and that Nivel has breached both the Settlement Agreement and the Distribution Ag reement. ECO also asserts that JAI, a retail and wholesale distributor of Bolt batteries, conspired with Nivel to commit fraud. Specifically, ECO alleges that in th e lead up to Nivel’s acquisition of Bolt, during the litigation leading up to the Settle ment Agreement, as well as after the Settlement Agreement became effective, Nivel and JAI coordi nated to sell Bolt batteries. 19 On February 13, 2026, the court granted ECO’s motion for expedited proceedings and entered a temporary re straining order, preventing Nivel from directly or indirectly selling or distributi ng Bolt batteries. At that time, the court concluded that ECO had stated colorable cl aims for breach of contract b ut had not 17 Id. § 3. 18 First Action Dkt. 115. 19 Am. Compl. ¶¶ 27–29.

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 7 of 26 stated a colorable claim for fraudulent inducement o r conspiracy to commit fraud. 20 The court granted ECO’s motion to expedite and scheduled a preliminary injunction hearing for February 24. 21 Days later, Nivel and ECO agreed to a stipulated preliminary injunctio n through March 24. 22 They disagreed, however, as to whether an expedited trial was warranted. JAI, a Florida entity, claims it is not subject to jurisdiction in Delaware and has moved to dismiss. In granting EC O’s first motion to expedite, the court permitted ECO to engage in li mited discovery in aid of establishing jurisdiction over JAI. The court observed that JAI probabl y possessed information relevant to ECO’s breach of contract claims against Nivel and encouraged JAI to be cooperative in facilitating discovery. The court also noted that ECO might seek to obtain discovery from JAI through a subpoena. On February 20, 2026, ECO filed an amended complaint, which added factual allegations to support its original claims and asserted a new cl aim against JAI for tortiously interfering with the Settle ment Agreement and the Distribution 20 The court reached this conc lusion based on an anti-relianc e clause in the Settlement Agreement. Dkt. 118 24:6–25:3. 21 Dkt. 106 42:6–8. 22 Dkts. 71, 79.

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 8 of 26 Agreement. On February 23, the c ourt granted ECO’s motion for expedited proceedings and scheduled a two-day tr ial for March 10-11, 2026, on all claims, including those asserted against JAI for co nspiracy to commit fraud and for tortious interference with contract, both of wh ich the court found to be colorable. 23 In the flurry of motion practice, the parties submitted competing forms of a confidentiality order to govern discovery. 24 The court rejected the parties’ proposed orders and, instead, entered a confidentia lity order that largely tracks the standard form of two-tiered confidentiality order that is posted on the court’s website. 25 Under the Confidentiality Orde r, a document may be designa ted as Confidential if it contains: nonpublic, confidential, personal, busin ess, strategic, proprietary, or commercially sensitive informati on that requires the protections provided in [the Confidentiality] Orde r and that has not become part of the public record. 26 A document may be designa ted as Highly Confidential if it contains: Confidential Discovery Material th at, if disclosed other than as permitted pursuant to paragraph 8 of this [Confidentiality] Order, the 23 See Dkt. 96, 117. The trial is limited to qu estions of liability a nd ECO’s request for equitable relief in the form of extending th e term of the Distribution Agreement. The damages phase, if necessary, will occur at a later da te. Dkt. 117 14:12–21. 24 Dkts. 40, 41. 25 Dkt. 47 (“Confidentiality Order”). 26 Id. ¶ 1(b).

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 9 of 26 Producing Person in good faith and reas onably believes is substantially likely to cause injury to the Producing Person. 27 Confidential and Highly Confidentia l Discovery Material may only be transmitted and viewed by certain people in connection with litigation. The critical difference between the two is, generally, that Highly Confidential Discovery Material may not be transmitted to or re viewed by the parties and their officers, directors, and employees, even if th ey are assisting with the litigation. 28 D. The Current Discovery Dispute On February 20, ECO filed the Mo tion challenging JAI’s designation of documents as Highly Confidential. EC O asserted that JAI had designated approximately 78% of the 2,769 documents produced as of that date as Highly Confidential. 29 JAI broadly defended its desi gnations, maintaining that the documents designated as Highly Confidential included “personally identifiable information for former, current, and pros pective customers, customer pricing information, JAI pricing info rmation, internal forecasts, pricing models, strategic plans, inventory projections, manufact urers and/or manufacturers contact 27 Id. ¶ 1(e). 28 Id. ¶¶ 7–8. 29 Motion at 1.

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 10 of 26 information and pricing, and internal business correspondences” all of which “is highly competitively sensitive” information for which “disclosure to . . .ECO[]—a direct competitor in the golf car industry—is substantially likely to cause injury to JAI.” 30 JAI further asserted that “[t]he very nature of ECO’s discovery requests calls for production of highly confidential inform ation” so the percen tage of designation should “come as no surprise to ECO.” 31 Before ECO filed the Motion, JAI “p roposed a compromise” requiring ECO to identify JAI documents that ECO believed were not Highly Confidential, after which JAI would consider re -reviewing those designations. 32 ECO rejected that proposal as being inconsistent with the Court of Chancery Rules and the Confidentiality Order. 33 Instead, ECO pressed for an order declaring that all JAI documents designated as Highly Confidential be redesignate d as Confidential. Given the highly expedited nature of this matter, the court took a cautious approach to resolving the discovery disput e. On Monday, February 23, the court granted the Motion with modifications (the “Order”), and implemented a detailed, 30 Dkt. 83 ¶ 1. 31 Id. ¶ 2. 32 Id. ¶ 6. 33 See e.g. Dkt. 74 ¶¶ 19–20; see also Dkt. 84 ¶¶ 5, 17.

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 11 of 26 albeit expedited, process aimed at resolvin g the dispute or, at a minimum, narrowing the issues. 34 The Order directed JAI to re -review its designation of Highly Confidential documents and to provide a new designation list to ECO, which ECO could then challenge. 35 The Order required the partie s to meet and confer over any unresolved issues and directed that Dela ware counsel be “pre sent and personally involved in the meet and confer session.” 36 If the parties could not resolve their dispute, the Order directed them to subm it a joint letter with a list of disputed designations by Thursday, February 26. 37 To ensure integrity in the process, the court borrowed a tool that has been used in disputes over the withholding of documents based upon assertions of attorn ey-client privilege and the work product doctrine. 38 Specifically, the court dir ected th e parties as follows: 34 Dkt. 89 (the “Order”). 35 Id. 36 Id. 37 Id. 38 See ATP III GP, Ltd. v. Ri gmora Biotech I nv'r One LP, 2025 WL 2601240 (Del. Ch. Sept. 8, 2025) (providing a procedure for cross-checking privilege logs whic h allowed plaintiff a 30% error rate in claiming privile ge on a sample set documents submitted for in camera review, and, ultimately, holding that all documents subject to the motion were deemed to waive privil ege when the special discovery magi strate concluded that plaintiff had no basis to assert privilege fo r 60% of the selected documents); Pfizer Inc. v. Ranbaxy Laboratories Ltd., 2004 WL 2323135, at *3 (D. Del. Oct. 7, 2004) (ordering production of all documents on plaintiff’s privilege log after in camera review of a sample set of documents submitted by defendant and finding that those documents were not privileged);

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 12 of 26 ECO may identify and submit for in camera inspection a sample of six documents that remain the subject of dispute. If the court determines that any document in the samp le does not qualify for Highly Confidential treatment, then the c ourt may order the de-designation of all documents that are contained in th e list attached to the parties’ joint letter submission. 39 On February 26, 2026, ECO and JAI filed a joint letter framing the outstanding areas of disagreement (the “Joint Letter”). 40 According to the Joint Letter, JAI redesigna ted 36 documents from Highly Confidential to Confidential and determined that 3 other documents previ ously designated as Highly Confidential were neither Highly Confidential nor Confidential. 41 In sum, JAI continues to maintain that 2,130 of the 2,769 documents it has produced in this litigation (77%) Thermo Fisher Sci. PSG Co rp. v. Arranta Bi o MA, LLC, 2023 WL 300150, at *9 (Del. C h. Jan. 18, 2023) (stating, after reviewin g a sample of documents submitted for in camera review, “[t]he problems with [p]laintiff's l og are so pervasive that I could—and arguably should—grant [d]efendant's re quest for relief [to produce all privileged documents to defendant without redactions] as to the entirety of [p]laintiff's log.”); see also Storagecraft Tech. v. Persistent Telecom Sols., Inc., 2016 WL 5852464, *2 (D. Utah Oct. 6, 2016) (ordering defendant to re-review its entire production of highly confidential designated documents and, if plaintiff continues to belie ve defendant is significantly over designating, plaintiff must submit for in camera review a sample set of doc uments and the court will impose appropriate sanctions if defendant continues to over designate documents, which may include “stripping the [highly confiden tial] designation from all of [d]efendant’ s documents”), objections overruled, 2016 WL 6988819 (D. Utah Nov. 29, 2016). 39 Order. 40 Dkt. 103 (“Joint Letter”). 41 Id. at 2.

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 13 of 26 warrant Highly Confidential treatment. 42 ECO disputes the Highly Confidential designation of all of those documents. 43 ECO declined JAI’s proposed compromises and submitted six disputed documents for in camera review. 44 II. ANALYSIS “Confidentiality orders must . . . en sure that only truly confidential information is being withheld from public disclosure and that the parties are not using the protective order as a device to shield nonconfidential information from the public” in an effort to “sanitize the public record” or shield “potentially embarrassing or unflattering” information. 2 Donald J. Wolfe, Jr. & Michael A. Pittenger, Corporate and Commercial Practice in the Delaware Court of Chancery § 6.02 (2d ed. 2021) (citing Publicker Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984); In re Walt Disney Co. Deriv. Litig., 2004 WL 368938, at *1 (Del. Ch. Feb. 24, 2004)). When JAI designated documents as Highly Confide ntial, it was required to have “a good faith basi s for the designation.” 45 Under the Confidentiality Order, 42 Beyond that, JAI told ECO that it might “consider, on an e xpedited basis, re-designating documents ECO [] identifie[s] as necessary, redact highly confidential information from document[s] ECO considers necessary, and .. . allow a designated ECO em ployee to review Highly Confidential materi al under the” Confidentiality Order). Joint Letter at 5–6. 43 Id. at 5; see id. Ex. 1. 44 See Dkt. 104. 45 Confidentiality Order ¶ 6.

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 14 of 26 JAI, as the producing party, “bears the bur den of establishing that the [challenged documents] qualif[y] as . . . Highly Confidential Discovery Material.” 46 See Brandrep, LLC v. Ruskey, 2018 WL 6820964, at *1 (Del. Ch. Dec. 27, 2018) (“Where designations of confidentiality ha ve been made pursuant to a protective order, the burden is on the designating pa rty to show good cause why its designations should be sustained if the non-designating part y objects.”). “A tria l court retains the jurisdiction and authority to enforce, modi fy, or terminate any confidentiality order it has entered. . . as long as th at order remains in effect.” Hallett v. Carnet Hldg. Corp., 809 A.2d 1159, 1162 (Del. 2002). The court has carefully reviewed the six documents selected by ECO for in camera review. JAI continues to maintain that these docum ents, along with the other 2,130 documents designated as Highly Confidential, warrant that treatment following three reviews. Th e first review occurred prior to JAI’s initial production. The second was in response to the court’s Fe bruary 23 Order, which directed JAI to conduct another review of its designations in response to the Motion. The third was when JAI and ECO met and c onferred before filing the jo int letter on February 26, which was also a requirement of the Orde r. That process re sulted in JAI’s de- 46 Id. ¶ 15.

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 15 of 26 designating or downgrading only 2% of the documents that it had originally designated as Highly Confidential. That, alone, gives rise to suspicion. See Thermo Fisher, 2023 WL 300150 at *4 (“Having many log entries that do not identify an attorney is a red flag indicative of larger problems. That turned out to be very true here.”); see also Procaps S.A. v. Patheon Inc., 2015 WL 4430955, at *9 (S.D. Fla. July 20, 2015) (“Procaps’ attorn eys presumably performed the final review [of the documents], and one or more of its attorneys realized, or should have realized, that a 95% highly confidential, [] designation ra te is problematic and questionable (or ‘absurd’) on its face.”). What follows is the court’s analysis of the six documents submitted for in camera review. A. JAI-0003594 The first document is a single, two-lin e text message from Art Porter of JAI to a person only identified as “Chuck” of Victory Golf Carts. 47 T h e t e x t m e s s a g e was sent at 1:51 p.m. on Ja nuary 22, 2026, and reflects a potential sales lead that Nivel’s Chief Executive Officer, Donnie J ouppi passed along to Porter. The text 47 Bates Number JAI-0003594.

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 17 of 26 me a call on this before you begin to work on this. I know it’s a lot of docs but I really need them as soon as possible.” The documents Sverdlow requested in the email include “PO’s 136, 148, 149, [and] 150 with Nivel” and the verification of cancellation, copies of every purchase orde r with the China-based manufacturer of Bolt batteries, verification of wires sent to the manufacturer, a nd the purchase order reflecting the “scramble[] of December 3 to buy a bunc h of batteries from Nivel before the injunction was fi nalized with the required bond.” Berman responded the next day with the requested information. The attachments to Berman’s email were not submitted for in camera review. This email exchange is not Highly Confidential. The emails contain no specifics about the purchase orders or payments to the manufacturer. The mere fact that JAI ca ncelled purchase orders and issued other purchase orders is not substantially likely to cause injury to JAI if that information is produced to ECO. C. JAI-0003447 The third document is a partial screen shot of an email from Ken Brasington of Edgewater Custom Carts to so meone only identified as “Jenn.” 49 The screenshot obscures the date, subject line, and email addresses of the sender and recipients. I n 49 Bates Number JAI-0003447.

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 18 of 26 the substance of the email, Brasington asks for help in ordering golf cart batteries because he had been told that he could not place them through Nivel and needed to call Bolt. The screenshot also contains the email address and phone number for Edgewater Custom Carts. The screenshot of this email is not highly confidential nor is the email itself if it were produced in native form. The phone number in the email is also not confidential because it is the official phone number for Edgewate r Custom Ca rts. There is nothing in the third document th at merits a Highly Confidential designation. D. JAI-0004222 The fourth document 50 is a three-sentence email from Brady Horton of Nivel to Sverdlow of JAI, dated January 6, 2026. The subject of the email is Nivel’s open purchase orders with a battery manufacturer in China. The email attaches an excel spreadsheet purportedly summarizing purchas e orders with the manufacturer, but only the email was submitted for in camera inspection. The email generally states only that Nivel’s recent March/April purch ase orders had been removed from the spreadsheet. The email does not provide any detail about the purchase orders in question. 50 Bates Number JAI-0004222.

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 19 of 26 Nivel has insisted throughout this litigation that Nivel and JAI are not affiliates and that Nivel has no ownership interest in JAI. 51 If so, then how is the email about Nivel’s purchase orders with its manufacturer in China Highly Confidential, when Nivel chos e to share it with JAI? The court fails to see how production of a short transmittal email mere ly stating that Nivel had canceled an unspecified number of purcha se orders with another en tity in January 2026 would be substantially likely to cause injury to JAI if disclosed to ECO employees who are deemed, by ECO’s trial counsel, to be r easonably necessary to assist with the prosecution of the case. 52 E. JAI-0003575 The fifth document is an exchange of eight text messages between Art Porter of JAI and “PB Carts Orm ond Beach” on December 3, 2025. 53 The participants are discussing Porter’s recent job interview. Po rter indicates that he was at Nivel the day before, and when the individual at PB Carts Ormond Beach asked “How did it 51 See e.g. Dkt. 6 at 1 (Nivel stating JAI is an “unaffiliated market participant” and JAI’s conduct as “third-party conduct”); id. at 7 (“But after Nivel dispell ed ECO’s assumption that JAI was an affiliate or subsidiary of Nive l. . .”); Dkt. 106 24:7– 9 (Nivel stated at the first TRO hearing, “JAI is not owned by Nivel. Nivel gets no benefit, generates no revenue from JAI's selling batteries.”); id. at 29:9–10 (Nivel stating “JAI’s not an affiliate of Nivel under Delaware law”). 52 See Confidentiality Order ¶ 7(a). 53 Bates Number JAI-0003576.

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 20 of 26 go?” Porter responded: “I took the job. Star t Feb 1.” Porter’s te xt message exchange with a third party about his accepting a new job effective February 1—presumably with Nivel—is not Highly Confidential JA I information. Its disclosure is not substantially likely to cause injury to JA I—indeed it was already disclosed to PB Carts Ormand Beach. Finally, the telephone numbers in the text exchange are publicly available and easily found thro ugh a brief intern et search. F. JAI-0002461 The sixth and final document submitted for in camera review is a short November 26, 2025, email from Jesse Burson of Nivel to Art Porter of JAI. 54 The email is transmitting the terms of a poten tial job offer to Porter, which appears related to the fifth document discussed above. The email contains two pdf attachments, neither of which was submitted for in camera review. The substance of the email in its en tirety is as follows: 54 Bates Number JAI-0002461.

Hi Art, Please find the role description and compensation structure enclosed. There are a few specifi c items that I am sure you want to walk through (how overdrive is calculated), which we can discuss during our meeting shortly. Looking forward to speaking with you. It strains credulity to even suggest that an email from Nivel to Porter transmitting the terms of potential employm ent is Highly Confidential information of JAI, the producing party. * * * * It is natural in highly expedited litigati on for parties to act cautiously and to be protective of internal corporate information, particularly when competitors are parties to the case. But a review of the six documents submitted for in camera inspection shows that JAI chose an overly a ggressive approach that it cannot justify in this case, even considering the highly expe dited nature of the dispute. JAI did not help its cause when it first designated a pproximately 78% percent of its production as Highly Confidential. This suggests that JAI chose the Highly Confidential designation as the default, rather than re viewing documents with a critical eye and making a good faith determination that th e designation was wa rranted. JAI only made matters worse when, after two mo re opportunities to review its earlier designations, selected a tiny fraction to downgrade from Highly Confidential to

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 22 of 26 Confidential. Finally, JAI did not improve its posi tion with its proposed “compromise,” that effectively sought to shift the burden to ECO to demonstrate which of JAI’s documents should not be de signated Highly Confidential. It was not ECO’s obligation to pick through and id entify from among the more than two- thousand documents designated as Highly Confidential those that JAI would “consider” reviewing after already having done so three previous times. It is and was JAI’s responsibility to exercise good faith when designating documents as Highly Confidential, and JAI bears the burde n of establishing that the documents it designated as Highly Confidential con tinue to qualify for that treatment. JAI has designated discovery material as Highly Confidential that is not worthy of Highly Confidential Treatment under the Confidentiality Order. None of the six documents submitted for in camera inspection contains Highly Confidential information, and the court ha s serious doubt as to any good faith basis to designate three of them as even worthy of Confidential treatment. “The Court also ‘has broad discretion in determining the scope of discove ry.’” Handler v. Centerview P’rs Hldgs. L.P., 2023 WL 1955151, at * 2 (Del. Ch. Feb. 13, 2023) (quoting Wei v. Zoox, Inc., 268 A.3d 1207, 1212 (D el. Ch. 2022)). And has broad discretion to fashio n appropriate remedi es for violations of a court order governing discovery. Marshall Fam. Props., LLC v. Fusco, 2026 WL 221459, at *8

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 23 of 26 (Del. Ch. Jan. 28, 2026). The appropriate remedy for JAI’s failure to comply with the terms of the Confidentiality Order is to re-designate all documents listed on Exhibit 1 to the Joint Letter from Hi ghly Confidential to Confidential. See Klig v. Deloitte LLP, C.A. No. 4993-VCL (Del. Ch. A ug. 6, 2010) (TRANSCRIPT) (de- designating all documents on a party’s privilege log due to gross over designation), interlocutory appeal denied, C.A. No. 569, 2010 (Del. Sept. 27, 2010) (ORDER); Pfizer, 2004 WL 2323135 at *3 (ordering productio n of all documents on plaintiff’s privilege log after in camera review of a sample set of documents submitted by defendant and finding that those documents were not privileged); Thermo Fisher, 2023 WL 300150 at *9 (stating after in camera review of a sample set of documents, “[t]he problems with [p]laintiff’s log ar e so pervasive that I could—and arguably should—grant [d]efendant’s request for re lief [to produce all privileged documents to defendant without redactions] as to the entirety of [p]laintiff’s log.”); THK Am., Inc. v. NSK Co. Ltd., 157 F.R.D. 637, 647 (N.D. Ill. 1993) (ordering “defendants to de-designate all of the ‘Attorney’s Eyes Only’ documents and reclassify them ‘Confidential’ or ‘Non-confidential’, and to do so forthwith. For defendants there no longer is any ‘Attorney’s Eyes Only’ classifi cation. They have lost the right to use the category. For them, the categories are ‘Confidential’ and ‘Non- confidential.’”). The court is keenly aware of the highly expe dited nature of this case and, therefore,

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 24 of 26 is not imposing the more severe remedy of declaring that none of the challenged documents even qualifies for Confidential treatment. G. Attorneys’ Fees and Expenses ECO is entitled to recover its attorneys’ fees and expenses in litigating the Motion. “Discovery a buse has no place in [Delaware] courts.” Holt v. Holt, 472 A.2d 820, 824 (Del. 1984) (quoting Delaware Superior Court Civil Rule 1). “Trial courts should be diligent in the imposition of sancti ons upon a party who refuses to comply with discovery orders, not just to penalize those whose conduct warrants such sanctions, but to deter those who may be tempted to abuse the legal system by their irresponsible conduct.” Hoag v. Amex Assurance Co., 953 A.2d 713, 717 (Del. 2008). Rule 37(b)(4)(A) provides that on a motion to require compliance with a discovery order, the court “s hall require the party . . . or attorney advising such conduct or both of them to pay to the m oving party” reasonable fees and expenses, including attorneys’ fees. The Delaware Supreme Cour t has explained that under Rule 37, “when a party fails to comply with discovery orders of the Court or otherwise engages in discovery abuses, the award of attorn eys’ fees and expenses to the opposing party is mandatory, absent a showing by the wrongdoer that his actions

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 25 of 26 were substantially justified or that othe r circumstances make the award unjust.” Bader v. Fischer, 504 A.2d 1091, 1096 (Del. 1986) (emphasis added). JAI has made no showing that its im proper designation of documents as Highly Confidential and failure to correct its violation of the C onfidentiality Order was substantially justified. Nor are there any other circumstances to make the award of fees unjust. ECO is awarded and JAI shall be re sponsible for the expenses ECO has incurred including attorneys’ fees for bringing the Motion and any actions required by the Order. If the parties are unable to reach agreement on the amount of fees and expenses to be paid, then ECO shall file a Rule 88 affi davit outlining the attorneys’ fees and costs it incurred in bringing the Motion and complying with the Order. The parties shall then submit a stipulated scheduling order to resolv e the fee and expense award. III. CONCLUSION For the foregoing reasons, each document designated as Highly Confidential on Exhibit 1 of the Joint Letter is downgraded from Highly Confidential to Confidential. ECO is awarded and JAI is ordered to pay the expenses ECO has incurred, including attorneys’ fees, for br inging the Motion and any actions required by the court’s Order.

ECO Capital, Inc. v. Nivel Parts & Manufacturing Co., LLC, et al., C.A. No. 2026-0173-PAF March 1, 2026 Page 26 of 26 Very truly yours, /s/ Paul A. Fioravanti, Jr. Vice Chancellor