There's not a lot of space in a discovery dispute letter to get into the real nitty gritty of the dispute. You've gotta put in the standard, say the word "Pennypack" 20 or 30 times, and work in the phrase "flies in the face of" at least once.
A recent opinion from Judge Burke, however, illustrates the folly of briefing disputes in this way, even if it is satisfying.
The defendant in Attentive Mobile Inc. v. Stodge Inc., C.A. No. 23-87, D.I. 400 (D. Del. Oct. 16, 2024) moved for a protective order to prevent the depositions of two employees. The opening letter apparently got quite into the weeds about the nature of the dispute -- at least in comparison to the opposition letter -- which led Judge Burke to side with the defendant and grant the motion:
The Court . . . hereby ORDERS that the Motion is GRANTED as Defendant has demonstrated that good cause exists for such an order. The Court so concludes for the reasons that follow: (1) Plaintiff asserts that the depositions at issue are needed because they are relevant to its claims for willful infringement and to the issue of copying. (D.I. 366 at 1) In its opening brief, however, Defendant had cogently explained, citing to relevant declarations when necessary, why, in its view: (a) the depositions could not be relevant to those issues . . . ; and (2) Thus, in light of this showing, in its answering brief, Plaintiff needed to make a clear, specific statement of relevance. That is, Plaintiff needed to say something like: "Despite the record Defendant has cited, Plaintiff believes that these depositions are relevant to the issue of willfulness and copying because Plaintiff's theory as to willfulness/copying is X and in light of the record, Plaintiff believes that Mr. Lence and Mr. Dinning will provide testimony as to Y; if they do, that will in turn bolster or relate to Plaintiff's theories in Z fashion." But Plaintiff did not do so. Instead, in its answering brief, it responded on relevance essentially in one paragraph, in which it made (at best) elliptical and vague suggestions as to why the depositions might be relevant-leaving the Court to try to fill in the blanks on its own. That is not the Court's role. Nor is it appropriate for a party to withhold that type of clarity and specificity and then spring it on Defendant and the Court at a future hearing; that is so for many reasons, including that (as is the case here) such a hearing may never occur.
Id.
This is probably good advice for any motion, but particularly for discovery disputes where the intricacies of relevance and burden are often hard for the Court to puzzle out in the limited space available.
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