We've all been there: Your motion is fully briefed, you're waiting for a decision, and some new piece of information comes to light. You really want to get it in front of the judge before your motion is decided—what are your options?
In D. Del., not much. Local Rule 7.1.2(b) sets a default schedule for opening, responsive, and reply briefs, and provides that "[e]xcept for the citation of subsequent authorities, no additional papers shall be filed absent Court approval." The text is clear—if your filing isn't a notice of subsequent authority, you need the court's leave to file it.
In practice, however, notices of subsequent authority often lead to an extended back-and-forth between the parties—argumentative notices lead to responses, which lead to replies, which lead to sur-replies. Before you know it, the judge has a stack of mini-briefs to read.
In a recent R&R, Judge Burke issued a stern footnote admonishing the parties for this practice (and striking the offending filings):
Subsequent to Victorinox's filing of the notice, Plaintiff submitted a “response” to the notice, which it asserted was filed “pursuant to” Rule 7.1.2(b). (D.I. 61 at 1) In fact, Rule 7.1.2(b) provides for no such thing. While Rule 7.1.2(b) allows a party to file a notice of supplemental authority, it does not provide for responses or replies to a notice of supplemental authority; instead, if a party wishes to file a “response” to a notice, it needs to seek leave of Court. Plaintiff did not do so here, and so its “response” is STRICKEN, as is Victorinox’s subsequent reply, (D.I. 62).
Keep in mind, this doesn't mean you can never respond to a notice of subsequent authority—you just need to ask for permission first.
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