For the second time in two weeks, Chief Judge Connolly has un-referred a case from a magistrate judge after the parties filed their fifth discovery dispute.
Last time, he scheduled an in-person hearing (rather than the more typical remote hearing) and imposed costs and fees for the losing party. This time, he went further, and threatened a possible trial time penalty if either party takes an unreasonable position.
In Beckman Coulter, Inc. v. Cytek Biosciences, Inc., C.A. No. 24-945-CFC (D. Del.), Chief Judge Connolly had referred all disputes to Magistrate Judge Tennyson just over a year ago. Since then, the parties have brought five discovery disputes, spread out pretty evenly over time:
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AI-Generated, displayed with permission
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For no reason at all, this leads me to Judge Connolly's recent order in Inari Medical, Inc. f/k/a Inceptus Newco1 Inc. v. Inquis Medical, Inc., C.A. No 24-1023-CFC (D. Del. Mar. 12, 2026) (Oral Order). Judge Connolly had referred the case to Magistrate Judge Tennyson early last year when the parties raised a protective order dispute. Since then, the parties had filed five motions for discovery dispute teleconferences. Upon the filing of the fifth, rather than receiving the usual order scheduling a teleconference, Judge Connolly issued the oral order below:
The Court's January 21, 2025 oral order referring the case to Magistrate Judge Eleanor G. Tennyson for all matters relating to discovery and the protective order is WITHDRAWN. The joint motion for a teleconference to resolve discovery disputes (D.I. 289 ) is GRANTED IN PART and DENIED IN PART. The Court will hear oral argument in person in Courtroom 4B on April 9, 2026 at 9:00 a.m. on the matters outlined in the joint motion. The parties should expect that going forward in this action the party that loses a discovery or protective order dispute will pay for the costs and fees the winning party incurred in litigating that dispute. As both parties have said they are available on April 9, see D.I. 289 at 4, the Court will not agree to move the April 9 argument, though obviously the Court does not oppose canceling the argument if the parties reach an agreement that resolves the disputes in question. The movant for any particular issue must file no later than March 20, 2026 a letter in support of its motion and a proposed order that specifies the exact relief being sought. The respondent shall file no later than April 1, 2026 a letter in response. The letters must be in 14-point font and shall not exceed 1,250 words.
Id.
It's pretty rare to see the Court discuss fees in the context of a discovery dispute, and the move to an in-person conference is also uncommon (although less so). It'll be interesting to see if we get more of these orders for cases that cross the 5-dispute Rubicon.
Whoever drafted the responding party's timeline in this case should write a book about how to draft persuasive timelines.Rita Morais, Unsplash
In D. Del. the vast majority of discovery motions are brought as discovery disputes. Basically, the parties meet-and-confer, and if they are unable to resolve the dispute, they file a joint letter or jointly call chambers (depending on the judge) to schedule a conference. In the lead up to the conference, they then file short (2- to 4-page) letters about the dispute, and the Court resolves it—possibly before the teleconference.
Do We Even Have a Dispute?
Sometimes, though, the process breaks down when the parties don't agree that they actually have a dispute. That's what …
Last week in Eagle Pharmaceuticals, Inc. v. Apotex Inc., C.A. No. 24-64-JLH (D. Del.), the Court partially granted a motion to compel production of sales documents in a patent case.
The plaintiff moved to compel production of communications between the defendant's "sales force":
The Court should order Apotex to produce communications among its sales force regarding the sale, marketing, pricing, and promotion of Apotex’s NDA product. Eagle’s RFP No. 57 seeks: “All communications between Your sales force, sales personnel, or marketing personnel that refer or relate to the sale, marketing, pricing, and/or promotion of Your NDA [New Drug Application] Product, including but not limited to by way of any group chat, texts, text …
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 additional19-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 …
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.
This is an issue I've seen come up a few times, but I don't know of another opinion on it offhand.
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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, …
"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:
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 …
"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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