A Blog About Intellectual Property Litigation and the District of Delaware

Even occasional Delaware practitioners will be aware of the meet and confer requirement for non-dispositive motions embodied in LR 7.1.1:

. . . every nondispositive motion shall be accompanied by an averment of counsel for the moving party that a reasonable effort has been made to reach agreement with the opposing party on the matters set forth in the motion. Unless otherwise ordered, failure to so aver may result in dismissal of the motion. For purposes of this Rule, “a reasonable effort” must include oral communication that involves Delaware counsel for any moving party and Delaware counsel for any opposing party.

This rule gets an additional piquante twist in the context of discovery disputes, wherein several judges' procedures require the parties to actually list the lead and local counsel who met and conferred. It can sometimes be a bit of a chore to collect all of these people together for a meet and confer before filing your terribly urgent dispute motion.

I know I'm forgetting something. . .
I know I'm forgetting something. . . AI-Generated, displayed with permission

All that's to say I can understand the urge to shortcut the procedure and just file a dispute letter saying, in essence, "I tried."

That seems to be what happened in Otsuka Pharms. Co., Ltd. v. Mylan Labs. Ltd., C.A. No 22-464-CFC-JLH (D. Del. Nov. 13, 2023) (Oral Order). In that case, the defendant filed an otherwise uninteresting discovery dispute letter listing the lead and local counsel for each party, that included this footnote:

Counsel for Defendants understood that Delaware counsel for Plaintiffs attended the meet and confer. Counsel for Plaintiffs now represent that Plaintiffs’ Delaware counsel did not attend the scheduled meet and confer.

Id., D.I. 179

A few days later, plaintiffs filed a letter noting the failure and generally complaining that the dispute was not ripe.

Judge Hall issued an oral order that same day denying the request for teleconference:

Having reviewed the Motion for Teleconference to Resolve Discovery Dispute (D.I. 179) and Plaintiffs' Letter (D.I. 182 ), IT IS HEREBY ORDERED that the Motion (D.I. 179 ) is DENIED WITHOUT PREJUDICE to renew after the parties meet & confer.

Id. at D.I. 183.

The court, interestingly, didn't address the underlying question of ripeness, so it appears that the defendant could simply refile once they meet the technical requirements. As of 10 minutes ago, however, they've yet to do so.

So there you go, always double check that you've got your Delaware counsel on the line. It can save you some heartburn.

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