A Blog About Intellectual Property Litigation and the District of Delaware

Broken Communication
Reid Naaykens, Unsplash

Parties can freely stipulate to many things in the District of Delaware, and often stipulations to extend deadlines are filed close to the last minute, especially where the parties are working toward agreement but ultimately cannot agree on the final filing in time (or else are having trouble connecting with the other side).

However, stipulations filed close to the Delaware witching hour (5:00PM EST) can be fraught with risk of the Court's denial, as we’ve seen in past heart-stopping examples. We’ve warned before that requests to move Court-scheduled conferences are in the “iffy” category, and combined with last minute filing, can end in disappointment for everyone, as shown in an oral order from Judge Noreika last week in Neurocrine Biosciences, Inc. v. Lupin Limited et al., C.A. 21-1042, D.I. 197 (D. Del. Jul. 16, 2021):

On April 17, 2023, the Court instructed the parties to talk to each other about their disputes so that a follow-up call with the Court (set for April 21, 2023) would be more productive than the prior call. On April 21, 2023, a few hours before the set call, the parties submitted a stipulation requesting the April 21 call be delayed. After further inquiries, it became clear that, in the five days after the Court directed the parties to TALK, they did not do so. The Court intended to address that during the April 21 call, but no counsel appeared for the call (notwithstanding that the Court had not granted the request for a delay). THEREFORE, IT IS HEREBY ORDERED that, should the parties not inform the Court that they have resolved their dispute in full by Tuesday April 25, 2023, lead trial counsel SHALL appear in person in Courtroom 4A on April 26, 2023 at 3:00 p.m. ORDERED by Judge Maryellen Noreika on 4/21/2023.

Judge Noreika previously indicated frustration with the magnitude of this particular discovery dispute (on search methods to find responsive documents), so the parties were on thin ice long before this order.

Ordering parties to meet in-person is becoming a popular tool, used by both Judge Noreika and Judge Connolly to solve inadequate meet-and-confers over claim terms. Could we see more orders requiring counsel to appear in person, either to prove adequacy of meet-and-confer efforts or to resolve discovery disputes with the Court? If so, discovery disputes could become potentially more expensive, burdensome, and may decrease in number. Time will tell.

Why Did This Happen?

The parties likely wanted to avoid criticism from the Court for not "TALK[ing]" as ordered, but ultimately made the resulting reproval far worse.

Was this an example of mutual oversight that the stipulation had not been granted, or a rare case of prisoners' dilemma in which both sides agreed not to appear? The latter is doubtful. While stipulations are typically granted, they are not effective until they are formally ordered by the Court. Had either of the parties' counsel joined the call "just in case" after the Court did not grant the stipulation, it would only have helped them—especially if the other side failed to take the same precaution. More likely, the parties just assumed it would be granted after the fact, or that it was effective even if it hadn't been granted.

This order serves as a reminder to double-check the docket and verify the Court's approval before acting (or failing to act) based on a stipulated extension!

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