A Delaware Court of Chancery judge said Monday that a defendant's attempt to modify a protective order so it could pursue fraud claims in Illinois should not go directly to the state Supreme Court because it had not raised a novel issue under Delaware law.

NCM Group Holdings had asked Vice Chancellor Sam Glasscock III to certify interlocutory appeal of an Nov. 1 bench ruling denying its request to amend the protective order submitted by the parties, which limited the use of discovery materials only to the Delaware litigation over a 2014 merger with demolition and environmental-remediation firm LVI Group Investments.

The move would have allowed NCM to take its appeal of Glasscock's ruling straight to Delaware's five justices, without having to wait on the resolution of competing fraud claims in the Court of Chancery. The company argued that a reversal in the normal appeal process could come too late for it to press its claims in Illinois, effectively depriving NCM of its right to appeal.

In a seven-page letter opinion, Glasscock conceded that the issue NCM cited was “not a frivolous” one, but he said the company had failed to meet the high bar for securing a fast-tracked appeal. The vice chancellor also rejected NCM's argument that his earlier ruling had touched on a matter of first impression regarding how the state handles motions to modify confidentiality orders.

Though the Delaware Supreme Court has never set a standard for evaluating the requests, Glasscock said a 2002 ruling from the high court embraced a ruling from the U.S. Court of Appeals for the Second Circuit, known as Wolhar, which required a showing of “extraordinary circumstances” and “compelling need.”

“This more stringent standard is set out in case law of the Second Circuit, and has not been articulated in Delaware,” he wrote. “NCM has not pointed to any Delaware authority supporting a standard that differs from the one adopted by Wolhar. Thus, my bench ruling does not involve a novel issue of Delaware law.”

NCM said in court documents that discovery had turned up evidence of “pervasive and widespread” fraud by top LVI personnel before the deal closed and argued that the protective order functioned as a de facto release for the alleged wrongdoers. NCM had worried that jurisdictional issues would bar individual claims in Delaware, and instead hoped to bring a new case in Illinois, where two of the LVI officials live.

But Glasscock said NCM knew when it agreed to the protective order that evidence could emerge that would implicate others at LVI, and thus could not suffer substantial prejudice in sticking to its terms.

“Considerations of justice, therefore, do not support interlocutory review of my bench ruling,” he said.

NCM, a named defendant in the case, itself is defending claims from LVI that it had inflated its accounting figures and other allegations of fraud.

Attorneys from both sides were not immediately available to comment on Tuesday.

LVI is represented by Rudolf Koch, Rudolf Koch and Matthew D. Perri of Richards, Layton & Finger.

NCM is represented by Richard D. Heins and Peter H. Kyle of Ashby & Geddes and Peter B. Ladig and Meghan A. Adams of Morris James.

The case is captioned LVI Group Investments v. NCM Group Holdings.