Judge Andrews issued an order a couple of weeks ago applying a Delaware local rule in a way I haven't seen before.
District of Delaware Local Rule 5.4 talks about when a party must serve vs. file discovery materials. Broadly, it says that in pro se cases, discovery request and responses is filed with the Court, and that in other cases, they are served but not filed.
But paragraph (b)(3) of LR 5.4 lays out what happens with deposition transcripts and other discovery materials when relied upon:
If depositions, interrogatories, requests for documents, requests for admissions, answers, or responses are to be used at trial or are necessary to a pretrial or post trial motion, the verbatim portions thereof considered pertinent by the parties shall be filed with the Court when relied upon.
LR 5.4(b)(3).
I've read this rule before but, honestly, have not thought much about it all that much since. Obviously, if you are relying on material, you will have to provide that material to the Court.
But Judge Andrews faced a situation where a party filed 490 pages of deposition transcripts containing the opposing party's information, which it had designated outside-counsel-only. They only cited a few of the pages in the related motion. The opposing party objected, saying it was unnecessary to file the transcripts, and doing so would unnecessarily put their information at risk.
The Court agreed, and cited Local Rule 5.4(b)(2) as requiring parties to file only the pertinent portions of deposition transcripts and discovery responses:
I received three submissions. . . . In relevant part, Plaintiff said there was no rule prohibiting what Plaintiff did, and some judges prefer to get complete depositions, etc. But I think Delaware does have a relevant Local Rule-Rule 5.4(b)(3), which states, in part, "If depositions ... are necessary to a pretrial... motion, the verbatim portions thereof considered pertinent by the parties shall be filed with the Court when relied upon." Some cases may require some judgment at the margins in deciding what is "pertinent." Plaintiff's decision to file the entirety of the two depositions and the twenty-six pages of the billing records is not in compliance with the Local Rule. The great bulk of the filings are clearly "not pertinent" to the motion to strike the expert report. Thus, they should not have been filed the way Plaintiff filed them.
Takeda Pharmaceuticals U.S.A., Inc. v. Mylan Pharmaceuticals Inc., C.A. No. 19-2216-RGA, at 2 (D. Del. Jan. 14, 2025).
The Court struck the filings, and permitted the party to re-file cut-back versions:
Exhibits 11, 12, and 13 are STRUCK. Plaintiff may refile such portions of the struck exhibits as are "pertinent" to the motion under consideration.
It's good to have some guidance from the Court that the rules actually prohibit parties from filing entire exhibits unnecessarily. That may give additional cover if a judge ever takes issue with the fact that a party excerpted their exhibits.
Filing Whole Deposition Transcripts Is Usually a Bad Idea Anyway
Often, for various reasons, attorneys want to file complete deposition transcripts, discovery responses, and long (LONG) exhibits. As we've said before, this is a bad idea.
The Judges Don't Like It
First, in my experience the judges dislike this approach. I've heard multiple judges complain about attorneys' practice of filing long exhibits unnecessarily. I recall one judge in particular holding up a phone-book-length filing at an oral argument and asking counsel if they really thought a filing of that length was necessary or appropriate.
Chief Judge Connolly's scheduling order goes further, and specifically directs the attorneys to excerpt and highlight their exhibits:
The parties should highlight the text of exhibits and attachments they wish the Court to read. The parties are encouraged to include in an exhibit or attachment only the pages of the document in question that (1) identify the document (e.g., the first page of a deposition transcript or the cover page of a request for discovery) and (2) are relevant to the issue( s) before the Court.
Judge Burke's discovery dispute procedures have similar provisions:
[T]he parties should highlight in yellow those portions of the exhibits that are particularly important and that they want the Court to focus on. . . . If a party is attaching an exhibit to its letter brief, and the exhibit is large (i.e., more than 20 pages), the party should simply include the cover page/first page of the exhibit and then only those other portions of the exhibit that are relevant to the discovery dispute. So, for example, if a party is attaching as an exhibit a 100-page expert report, but only 10 pages of the report are truly relevant to the dispute, then the party should only include the cover page and the 10 relevant pages of the report.
In the time since the judges started adopting these procedures, I've seen them spread. These days we typically excerpt and highlight exhibits before all of the District of Delaware judges, and I have yet to see any pushback.
Filing Full Exhibits Can Backfire
Second, beyond the judges' dislike of the practice, it can potentially hurt your motion or your positions. Putting random stuff in the record can be a bad thing. Paraphrasing a now-retired judge, "if the exhibits to your summary judgment motion make a stack a foot high, then there is probably a dispute of fact in there."
You can also shoot yourself in the foot on the substance. I once had a trial where we won a judgment of no infringement by relying on a standards document that the patentee had included for no good reason and never relied on again.
You Don't Want to Have to Redact That
Finally, as in the case above, if the material is confidential, somebody is going to have to handle redactions. Some of the judges will automatically strike fully-redacted exhibits, requiring the parties to pick through potentially hundreds or thousands of pages line-by-line for redactions.
We posted about the party who filed 6,778 pages of exhibits under seal, and the Court forced them to pick through and redact every page of them line-by-line. I wouldn't want to be in that situation.
And even if you are before a judge who will not automatically strike fully-redacted exhibits, filing confidential exhibits unnecessarily still risks the Court unsealing your exhibits and briefing—or even most of the docket—if you over-redact.
Basically, I would excerpt and highlight your exhibits wherever you can. Everybody benefits. It will make your motions easier to read and potentially save you some real headaches down the line.
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