A Blog About Intellectual Property Litigation and the District of Delaware


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The District of Delaware sometimes requires the parties to file joint status reports, usually either at dates set in the scheduling order (e.g. an "interim status report") or following developments in the case that require more information, like a stipulated stay that has expired, or after a communication from the parties regarding a development in the case.

Typically, by convention, plaintiff handles the initial draft of these reports—but not always. Either way, one side will send a draft, and the other side will prove its position, sometimes reflexively opposing whatever is in the initial draft. The final report will often be split, with "Plaintiff's position" and "Defendant's position," although sometimes the parties will agree to a single unified letter.

Don't Wait Until the Last Minute

Of course, that only works if the first draft goes around with enough time to review and combine the positions, and get them under the page limit if need be. Last week in BioDelivery Sciences International, Inc. et al v. Chemo Research, S.L., C.A. No. 19-444-CFC-CJB (D. Del.), the parties saw what happens when they fail to give themselves enough time to sort this out.

There, Judge Burke ordered the parties to file a joint status report within a week, after a discovery dispute teleconference where the defendant apparently accused plaintiff of seeking to delay the upcoming trial. Defendant pushed to exchange drafts of the report several days in advance; Plaintiff apparently refused to exchange until 5pm on the due date, just one hour before the 6pm deadline.

When the time to exchange came, Plaintiff sought to attach a new expert declaration to the status report, and defendant refused. The parties ultimately filed separate status letters after the deadline.

The Court was not pleased:

ORAL ORDER: The Court . . . ORDERS as follows: (1) As an initial matter, the Court asked the parties for a three-page status report by close of business on February 9, 2022, but it did not receive that (instead, it received two separate letters totaling five pages, filed after the close of business). The reason for this appears to be Plaintiffs' heading-scratching decision to require the initial exchange of the parties' positions one hour before the filing deadline (even though the parties had a week to meet and confer and prepare their joint submission). (D.I. 452 at 1; D.I. 453 at 1)

Nor did the Court enjoy plaintiffs' attempt to attach a new expert declaration to a status report—it sua sponte struck the new report, citing plaintiffs failure to meet-and-confer:

More than that, Plaintiffs appended a new declaration to their letter that Defendants had no reasonable advance notice of; Plaintiffs then tried to use the declaration in an effort to impact the Courts decisions going forward. (D.I. 452, ex. 1) The Court STRIKES this declaration and any portions of Plaintiffs' letter referring to the declaration from the record; it will not consider these materials herein, due to Plaintiffs' inability to meet and confer in a reasonable way.

So, the lesson here is pretty obvious: don't wait until one hour before the deadline to coordinate a joint filing like this, and don't try to slip a late expert declaration into a joint status report.

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