A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Discovery Disputes

Update on Monday's 12-Minute Meet-and-Confer Post, Plus Guidance from Court on Whether Motion to Stay Is a "Discovery Dispute"

Andrew E. Russell, Jan. 31, 2025
Motion to Stay Meet-and-Confer

Clock
Akram Huseyn, Unsplash

On Monday, we posted about how the Court had denied a motion to bring a discovery dispute, because a 12-minute meet-and-confer was not long enough.

If you were curious, as I was, about how long of a meet-and-confer would be sufficient, we now have a data point. The parties re-filed their letter after conducting an additional 19-minute meet-and-confer, and the Court granted their motion and permitted them to bring the dispute to the Court.

So the data points we have so far are that 12 minutes is insufficient, and that two meet-and-confers totaling 31 minutes (12+19) were sufficient.

There is obviously a range of times in between those numbers that might or might not …

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Court Denies Motion to Bring Discovery Dispute Because Meet-and-Confer Was Not Long Enough

Andrew E. Russell, Jan. 27, 2025
Discovery Disputes Meet-and-Confer

Will they use a phone like this? No. But I couldn't find a good image for
Will they use a phone like this? No. But I couldn't find a good image for "Zoom meeting where everyone but that one person has their camera off." Quino Al, Unsplash

We haven't had many posts yet on the Court's newest magistrate judge, Judge Tennyson. But we got an interesting data point on Friday when the Court ruled on a motion to schedule a teleconference to resolve a discovery dispute.

In Inari Medical, Inc. v. Inquis Medical, Inc., C.A. No. 24-1023-CFC-EGT (D. Del.), Chief Judge Connolly referred all discovery disputes to Judge Tennyson. Shortly thereafter, the parties submitted a form motion following her guidelines to initiate a discovery dispute.

The motion identified the amount of …

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Court Denies Request for Discovery of Git / Version Control History for Source Code

Andrew E. Russell, Sept. 25, 2024
Source Code Discovery Dispute

Source Code
Markus Spiske, Unsplash

This is an issue I've seen come up a few times, but I don't know of another opinion on it offhand.

Source code is typically managed using a source control or version control system, typically (but not always) using a program called git. Git is a command-line program that allows developers to manage different versions of source code in a tree structure called a "repository."

A developer can create a "branch" within the repository, for example, to work on a specific feature. As they work on aspects of the code for that feature, they can "commit" them, along with a message about the purpose of their revisions. When they are done working on that feature, …

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Cross Briefing On Discovery Disputes Is Not an Opportunity to Pre-Brief the Other Side's Motion

Andrew E. Russell, May 20, 2024
Discovery Disputes Letter Briefs

"Guys, if we write our own opening brief on their issue, we'll get more than twice the page limit! The Court loves extra briefing, right?" ron dyar, Unsplash

I've had this come up a couple of times lately, and an opinion came out on Friday that addresses it.

Here is an example scenario: Each side has a discovery dispute. The Court sets a briefing schedule with opening, answering, and reply 3-page briefs. Can each side spend half of its opening brief pre-briefing the other side's issues? Should they?

Judge Fallon resolved this on Friday with a clear "No". You wait for the other side to file their brief, and then respond:

ORAL ORDER re 49 Joint Motion for Discovery …
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Delay Is a Motion Killer: Part Two

Andrew E. Russell, May 8, 2024
Discovery Disputes Motion Practice

Do It Now
Brett Jordan, Unsplash

Last month we wrote about how delay is a motion killer. Procrastination is a problem most of us litigators share. But if you want your discovery motion granted, it's best to move now not later. Keep up the pressure.

We got another example of that yesterday in Tot Power Control, S.L. v. LG Electronics Inc., C.A. No. 21-1304-MN (D. Del. Apr. 23, 2024) (unsealed May 7, 2024). Tot is an opinion by Judge Fallon on several discovery motions, and two of them were denied due to delay.

First, the Court denied a request to compel plaintiff to produce communications related to valuations it received. Back in June 2023, the plaintiff had agreed …

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Court to Parties: Finish Meeting-and-Conferring Before You File Your Discovery Dispute

Andrew E. Russell, Feb. 12, 2024
Discovery Disputes Impasse

"Hang on, judge. You can't just rely on what is in our letter briefs. We filed those three days ago!" AI Generated, displayed with permission

Judge Burke issued an oral order late last week addressing a discovery dispute where a defendant requested that the Court order plaintiff to apply more e-mail search terms. He denied the request, noting that the parties were clearly still meeting-and-conferring:

ORAL ORDER: The Court, having reviewed the portion of the pending motion regarding discovery disputes, (D.I. 198), in which Defendant requests that the Court order Plaintiff to utilize 24 additional ESI search terms ("Defendant's request"), and the briefing related thereto, (D.I. 204; D.I. 212; D.I. 214), hereby ORDERS that Defendant's request is DENIED, without prejudice to renew. That request, as briefed, is clearly unripe. In the briefing, the parties, including Defendant, alternatively described the issue as one as to which the parties were: (1) "continu[ing] their meet and confers [such that Plaintiff] offered some supplemental ESI searches and... [Defendant] requested some modifications[,]" (D.I. 204 at 2); (2) "still negotiating on the scope of additional search terms and are not at an impasse" and "working... to narrow the additional search terms[,]" (D.I. 212 at 1); and (3) "continu[ing] to discuss matters" in that Defendant "intends to submit new search terms [that] should resolve all of [Plaintiff's] alleged criticism" such that the matter "should be resolved" in the future, (D.I. 214 at 1).

Topia Technology, Inc. v. Egnyte, Inc., C.A. No. 21-1821, D.I. 226 (D. Del. Feb. 9, 2024).

He explained why the Court requires parties to ...

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In Response to Objection That Discovery Dispute is Premature, Judge Burke Orders Parties to Meet-and-Confer for a Set Number of Hours, and Explains How to Meet-and-Confer

Andrew E. Russell, Jan. 10, 2024
Discovery Disputes Discovery Dispute

"Counsel, go stand in the corner until you figure out what 'collegiality' means." Mag Pole, Unsplash

Several District of Delaware judges have discovery dispute procedures that require parties to first file a letter stating that the parties have met and conferred but are unable to resolve some disputes, and list the disputes.

This usually works out well, but a few issues can occasionally come up with this procedure. For example:

  1. One party refuses to meet-and-confer, forcing the other side to file solo.
  2. The parties have met and conferred to death, but one party refuses to sign the the joint letter anyway (or just refuses to respond), solely for the purpose of delay.
  3. One or more parties jump the gun, …
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Keys, Phone, Wallet, Delaware Counsel

Nathan R. Hoeschen, Nov. 16, 2023
Discovery Disputes

Even occasional Delaware practitioners will be aware of the meet and confer requirement for non-dispositive motions embodied in LR 7.1.1:

. . . 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 rule gets an additional piquante twist in the context of discovery disputes, wherein several judges' procedures require …

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Judge Fallon's New Discovery Dispute Procedures: What Changed?

Andrew E. Russell, Aug. 9, 2023
Discovery Disputes Procedures

Artist's rendition of a typical discovery dispute letter, where counsel did not excerpt the exhibits.
Artist's rendition of a typical discovery dispute letter, where counsel did not excerpt the exhibits. ron dyar, Unsplash

We're still catching up from our two-week break here at IP/DE, and this is another item on our list. Last month Magistrate Judge Fallon issued updated discovery dispute procedures (attached below).

The most common question when these come out is: what changed? The judges don't usually issue redlines, and of course, the old procedures normally disappear from the website immediately (although they are usually available via the Wayback Machine).

Here, the procedures are largely the same, with some minor additions:

  • The required proposed order must list relief for each dispute.
  • Each party should attach only the relevant pages of cited …
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