Delaware's Local Rule 7.1.1 requires, in cases that don't involve pro se parties, that the parties must have a verbal meet-and-confer before either party files a non-dispositive motion:
Except for civil cases involving pro se parties or motions brought by nonparties, 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 is almost always enforced, with a few big exceptions. One exception is pro hac motions. In over 15 years of practice in D. Del., I have never heard of anyone meeting and conferring on a pro hac motion (although I have heard of one being contested). Nor can I recall anyone including a LR 7.1.1 declaration or even noting that they are unopposed. Nonetheless, these are typically granted the same day or the next day.
Another big exception—it seems—is personal electronics motions. When the Court initially required attorneys and others without a bar card to move for leave to bring personal electronics into the courtroom, there was an initial rush of kinda-pointless meet-and-confer calls so that everyone could include LR 7.1.1 declarations in their electronics motions.
Last year, however, we speculated that these could be analogized to pro hac motions, and that we all didn't need to meet-and-confer. That seems to have panned out, and I can't remember the last time someone requested a meet-and-confer on a personal electronics motion.
Finally, the Court doesn't typically require a meet-and-confer on some very limited kinds of requests at trial, such as objections to live testimony, an immediate request to strike something a witness just said, or offering/tendering a witness as an expert in a particular subject.
Other than those kinds of exceptions, all non-dispositive motions require a meet-and-confer.
But It's Just a Teeny Little Motion. Do I Really Have to Have a Meet-and-Confer Call?
Yes. You have to meet-and-confer on opposed discovery motions, no matter how small. You have to confer on Daubert motions too. People often forget, but you also have to confer on motions in limine. Even at trial, you need to meet-and-confer on almost all non-dispositive requests for relief (and in a patent trial, you'll probably be meeting-and-conferring every night anyway).
Plus, you may be surprised how often it proves helpful. Sometimes parties will just give in. I remember the time when my co-counsel had drafted an entire motion to stay with a cover motion, a full-length brief, and exhibits before the meet-and-confer. Then, on the call, it turns out the other side just wanted a minor concession and did not oppose the stay. The motion, lengthy brief, and exhibits were discarded, and the parties instead filed a short stip.
Even if the other side doesn't agree on the merits, the meet-and-confer can really help your motion. They may concede some points, and you can explore (and explain to the Court) where the parties differ. It is legitimately helpful.
But Our Lead Trial Counsel Is Unavailable!
There is no requirement under the rule that "lead trial counsel" participate.
The rule only requires a "reasonable effort" that must include Delaware counsel for both sides. Typically, in practice, parties treat this as a requirement that someone from each side who is knowledgeable about the issues in the motion participate, plus Delaware counsel. If Delaware counsel is prepared and has the authority to have a real meet-and-confer, then that is all you need.
Meet-and-Confer by Ambush
Sometimes parties try to meet this requirement via a last-second call between Delaware counsel. Years ago, it wasn't unusual for young associates to occasionally get a random, last-second, out-of-the-blue call from opposing Delaware counsel, asking whether the associate's client opposes some kind of non-dispositive relief.
They naturally answer "I'll get back to you," and then follow up by e-mail stating that their client opposes. The moving party would then immediately file their motion with a Rule 7.1.1 certification.
Personally, I don't think that kind of a call meets the rule, which requires a "reasonable" effort. It still occurs from time to time. If you happen to be the Delaware counsel on the receiving end of that call, you can always say something like:
I'm sorry, I'm not prepared to meet-and-confer on that, but please go ahead and send an e-mail to me and my co-counsel with your availability, and we'll get back to you on a time.
That's an easy way to tell opposing counsel that you are not going to let them check the verbal meet-and-confer box without actually doing it.
No Meet-and-Confer? Your Motion Could Be Denied
Anyway, this post was inspired by Judge Tennyson's ruling today in In Re: Petronas Azerbaijan (Shah Deniz) S.a.r.l, C.A. No. 24-1283-CFC (D. Del.).
In that case, a party filed a motion for leave to file a surreply, and included a pretty standard meet-and-confer certification:
Pursuant to District of Delaware Local Rule 7.1.1, the undersigned counsel hereby certifies that Respondent met and conferred with counsel for Petitioners about the substance of this motion and learned that Petitioners will oppose the relief set forth herein.
Id., D.I. 30 at 4. Opposing counsel responded on the merits, and also argued that the Court should deny the motion because the moving party had met-and-conferred only by e-mail, not by actually speaking. Id., D.I. 32 at 2.
In response, Judge Tennyson ordered the moving party to file a letter setting forth exactly how long it had met-and-conferred:
ORAL ORDER re 30 - WHEREAS, Local Rule 7.1.1 requires a movant to engage in "a reasonable effort" to reach agreement prior to filing any non-dispositive motion (i.e., oral communication involving Delaware counsel for the moving and non-moving parties), WHEREAS, Respondent CF Taurus (US) LLC has represented that it complied with this meet-and-confer requirement of Local Rule 7.1.1 before filing its motion for leave to file a sur-reply (D.I. 30 at 4), and WHEREAS, Petitioners assert that no oral communication (telephonic or in-person) among Delaware counsel occurred prior to CF Taurus filing its motion (D.I. 32 at 2), IT IS HEREBY ORDERED that, on or before June 6, 2025, CF Taurus shall file a letter with the Court describing in detail its compliance with Local Rule 7.1.1 prior to filing its motion. CF Taurus's submission shall indicate who participated in the meet and confer, when and how that meet and confer occurred and how long it lasted. ORDERED by Judge Eleanor G. Tennyson on 6/4/2025. (lah) (Entered: 06/04/2025)
Id., D.I. 35.
It turns out that the answer was simply that they hadn't had a meet-and-confer at all. D.I. 36. Instead, they cited a 2009 case where the Court had held that an e-mail was enough. Id. at 1-2.
The Court disagreed, pointing out that the rule has since been amended to explicitly require an oral meet-and-confer—and it denied their motion:
ORAL ORDER re 30 - Respondent CF Taurus (US) LLC's Motion for Leave to File a Sur-Reply Brief (D.I. 30 ) is DENIED for failure to comply with Local Rule 7.1.1, which requires a movant to engage in "a reasonable effort" to reach agreement prior to filing any non-dispositive motion (i.e., oral communication involving Delaware counsel for the moving and non-moving parties). CF Taurus admits that there has been no such oral communication here but nevertheless suggests that strict compliance with Local Rule 7.1.1 is not required and any failure to comply should be excused. (D.I. 36 at 1-2). But CF Taurus's reliance on St. Clair Intellectual Property Consultants v. Palm, Inc., 2009 WL 1649751 (D. Del. June 10, 2009), is misplaced as that case predates the 2016 amendments to Local Rule 7.1.1 that explicitly added that "a reasonable effort" must include oral communication between the parties and involve Delaware counsel. And simply assuming that any further meet-and-confer would be "futile" based on a rote email response is not acceptable. CF Taurus's position would render meaningless the requirement that parties first engage in reasonable efforts to reach agreement on issues raised in non-dispositive motions before filing those motions with the Court. ORDERED by Judge Eleanor G. Tennyson on 6/9/2025. (lah) (Entered: 06/09/2025)
Id., D.I. 37.
The Court did not say that the motion was denied with prejudice. But even if it permits a subsequent motion on the same topic, after an actual meet-and-confer, it will still represent a lot of wasted time.
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