TR Investors, LLC v. Genger
In TR Investors, LLC v. Genger, 2013 WL 603164 (Del. Ch. Feb. 18, 2013), the court found that the existence of the differing burdens of persuasion was due to Genger's own conduct.
The higher burden was imposed on Genger in a prior action in the context of spoliation sanctions and contempt of court.
As the Court of Chancery explained, "it would defeat the equitable nature of the doctrine of issue preclusion if Genger, having been held to a higher burden of proof because of his contempt, was able to benefit from this higher burden later by using it to deny preclusive effect to the prior judgment."