A Blog About Intellectual Property Litigation and the District of Delaware

Personal Electronics in Courtroom
AI-Generated, displayed with permission

The text of the District of Delaware Local Rules require non-pro se parties to meet-and-confer on every non-dispositive motion:

RULE 7.1.1. Statement Required to be Filed with Nondispositive Motions.
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.

But that's not always the case in practice. While the text of the rule says this, there is at least one extremely common exception: motions for admission pro hac vice.

In over 1.5 decades of practicing in the District of Delaware, not once have I heard of a party meeting-and-conferring before filing a pro hac motion, or including a LR 7.1.1 certificate with their pro hac motion (although I have heard of a pro hac motion being opposed). The Court normally grants them regardless.

To meet, or not to meet? That is the question.

Motions for exemption from the Court's personal electronics policy are a new creature. They didn't exist a year ago, before the Court instituted its personal electronics policy, but now they are quite common on the docket—particularly in the lead-up to trial.

We're already learned a few things about what the Court wants to see in these. The Court has denied them when the parties don't identify who the people are who need exemptions and, sometimes, when a party seeks too many exemptions.

But one thing I haven't seen is the Court denying the motion for failing to meet-and-confer, or for failure to include a LR 7.1.1 certification. Over time, it seems to me that attorneys (including some well-known and highly-respected Delaware practitioners) have been treating these more and more like pro hac motions, filing them without a Rule 7.1.1 statement and without raising them with the other side first.

So far, the Court doesn't seem to mind, and these motions are usually granted seemingly automatically long before any reply would be due (much like most pro hac motions), and regardless of whether they include a LR 7.1.1 statement.

Of course, many parties still spend the time to reach out to the other side and confirm non-opposition. There seems to be a split of opinion on this among Delaware counsel.

Looking at recent dockets—and to make everyone more comfortable with the idea—here is a list of some of orders granting motions for exemption from the personal electronics policy, where the motions were not unopposed or joint, and did not include a LR 7.1.1 certification that I see:

  • Smartsky Networks LLC v. Gogo Business Aviation, LLC, C.A. No. 22-266-JLH, D.I. 206 (D. Del. Feb. 27, 2024) (Hall, J.)
  • Ecolab Inc. v. DuBois Chemicals, Inc., C.A. No. 21-567-RGA, D.I. 345 (Feb. 20, 2024) (Andrews, J.)
  • Exeltis USA, Inc. v. Lupin Ltd., C.A. No. 22-434-RGA-SRF, D.I. 299 (D. Del. Feb. 16, 2024) (Andrews, J.)
  • Baxter Healthcare Corporation v. Nevekar Injectables, Inc., C.A. No. 21-1186-CJB, D.I. 151 (D. Del. Feb. 6, 2024) (Burke, J.)
  • Arbor Pharmaceuticals, LLC v. Saba Ilac Sanayii ve Ticaret As, C.A. No. 22-353-MN, D.I. 192 (D. Del. Jan. 29, 2024) (Noreika, J.)
  • Alnylam Pharmaceuticals, Inc. v. Pfizer Inc., C.A. No. 22-336-CFC, D.I. 160 (D. Del. Jan. 2, 2024) (Connolly, J.)
  • C.R. Bard, Inc. v. Angiodynamics, Inc., C.A. No. 20-1544-CFC-SRF, D.I. 438 (D. Del. Sept. 12, 2023) (Fallon, J.)
  • General Electric Company v. LPP Combustion, LLC, C.A. No. 22-720-GBW, D.I. 64 (D. Del. July 6, 2023) (Williams, J.)

That list includes every sitting D. Del. judge except for Judge Hatcher, and I saw no denials from her.

Is it safe? It's safe, right?

So: Is it safe to file your motion for a personal electronics exemption without meeting-and-conferring first, or otherwise getting the other side's position? Who knows. It could be that the Court, or a particular judge or their staff, hadn't previously thought of this issue, and you'll be the first to be denied on that basis (if that has already happened, please let me know!).

But I tend to think, by analogy to pro hac motions and in light of the fact that all of the judges listed above have granted these, that it's probably fine. Consult your local counsel.

If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.


Similar Posts