A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Meet-and-Confer

5-Body Problem

Nathan R. Hoeschen, June 13, 2024
Meet-and-Confer Discovery Dispute

Bringing a discovery dispute is a bit of a 3-body problem. At any given time, you've probably got a half dozen complaints with what the other side is doing. When one boils over into a dispute you have to grapple with whether you should just bring all of them—and risk looking unreasonable—or just address the most pressing and risk having to raise serial disputes, which might look even worse. The push and pull can quickly become insoluble.

Guillermo Ferla, Unsplash

Luckily, we got an Order from Judge Burke this week that should make this calculus slightly easier going forward.

The defendants in Bardy Diagnostics, Inc. v. Vital Connect, Inc., C.A. No. 22-351-CFC-CJB, D.I. 97 (D. Del. June 11, 2024) (Oral Order) brought the first discovery dispute of the case (by either party) via judge Burkes usual procedure of filing a letter listing the disputes.

The disputes read as the usual humdrum list of custodians not searched and rogs insufficiently answered. The only thing out of the ordinary, is that there were 5 of them included in the letter.

Judge Burke responded to the request for a teleconference the next day with ...

View

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 ...

View

"If parties could decide not to follow Local Rules because they thought that the rules were not useful in their particular case, that would threaten the Court's ability to manage its docket."

Andrew E. Russell, May 15, 2023
Meet-and-Confer Discovery Dispute

Please Stay on the Path
Mark Duffel, Unsplash

The headline is a nice quote from a Judge Burke oral order last week in Bausch & Lomb Incorporated v. SBH Holdings LLC, C.A. No. 20-1463-GBW-CJB, D.I. 77 (D. Del. May 12, 2023).

There, the defendant moved to stay but apparently failed to meet-and-confer at all before moving. The plaintiff wisely called them out for failing to do so:

As an initial matter, it is undisputed that SBH did not attach a certification pursuant to D. Del. LR 7.1.1 to its Motion or letter brief; nor could it have, because there was no meet and confer between counsel. The first B+L heard about SBH’s Motion was in SBH’s letter to the Court …
View

Check the Docket Before Failing to Appear for a Hearing

Emily DiBenedetto, April 25, 2023
Stipulation Meet-and-Confer

Broken Communication
Reid Naaykens, Unsplash

Parties can freely stipulate to many things in the District of Delaware, and often stipulations to extend deadlines are filed close to the last minute, especially where the parties are working toward agreement but ultimately cannot agree on the final filing in time (or else are having trouble connecting with the other side).

However, stipulations filed close to the Delaware witching hour (5:00PM EST) can be fraught with risk of the Court's denial, as we’ve seen in past heart-stopping examples. We’ve warned before that requests to move Court-scheduled conferences are in the “iffy” category, and combined with last minute filing, can end in disappointment for everyone, as shown in an oral order from Judge Noreika last week in Neurocrine Biosciences, Inc. v. Lupin Limited et al., C.A. 21-1042, D.I. 197 (D. Del. Jul. 16, 2021):

On April 17, 2023, the Court instructed the parties to talk to each other about their disputes so that a follow-up call with the Court (set for April 21, 2023) would be more productive than the prior call. On April 21, 2023, a few hours before the set call, the parties submitted a stipulation requesting the April 21 call be delayed. After further inquiries, it became clear that, in the five days after the Court directed the parties to TALK, they did not do so. The Court intended to address that during the April 21 call, but no counsel appeared for the call (notwithstanding that the Court had not granted the request for a delay). THEREFORE, IT IS HEREBY ORDERED that, should the parties not inform the Court that they have resolved their dispute in full by Tuesday April 25, 2023, lead trial counsel SHALL appear in person in Courtroom 4A on April 26, 2023 at 3:00 p.m. ORDERED by Judge Maryellen Noreika on 4/21/2023.

Judge Noreika previously indicated frustration with the magnitude of this particular discovery dispute (on search methods to find responsive documents), so the parties were on thin ice long before ...

View

Judge Noreika: "The Court Will Not Act as a Negotiator to Whittle Down Overly Broad [Discovery] Requests."

Andrew E. Russell, March 17, 2023
Meet-and-Confer Discovery Dispute

Attorneys
AI-Generated, displayed with permission

Judge Norieka issued a notable oral order earlier this week in Neurocrine Biosciences, Inc. v. Lupin Limited, C.A. No. 21-1042-MN (D. Del.).

The context is not fully clear from the docket, but it looks like the parties contacted the Court to initiate a discovery dispute regarding the sufficiency of the plaintiff's document collection efforts. But, instead of issuing the typical order starting the process, Judge Noreika ordered the parties to meet-and-confer again and set some expectations as to how the Court will handle the dispute:

ORAL ORDER - The parties have requested a discovery dispute teleconference regarding Defendants' request for discovery into the search methods Plaintiff used to find responsive documents. IT IS HEREBY ORDERED that the parties shall meet and confer again. Thereafter, on or before 5:00 PM on 3/20/2023 [five days from the order], the parties shall provide the Court with the current version of the discovery requests, explaining what part or parts remain in dispute. The Court will not act as a negotiator to whittle down overly broad requests. Therefore, Defendants should propose requests of appropriate scope with the understanding that the Court may simply deny requests that are overly broad on their face.

It looks like the Court may be trying out a more efficient way to resolve disputes over discovery requests.

View

Another D. Del. Judge Orders an In-Person Claim Construction Meet-and-Confer, and Cancels Markman (And: Some Thoughts on Claim Construction Meet-and-Confers)

Andrew E. Russell, March 8, 2023
Meet-and-Confer Claim Construction

Andrew E. Russell

Just last week, we wrote about Judge Noreika ordering an in-person meet-and-confer to occur between lead trial counsel regarding claim terms, in the courtroom in Delaware, and "continuing until excused by the Court." In ordering the in-person meet-and-confer, Judge Noreika noted that the parties had "spoke[n] for just 20 minutes about 10 disputed terms" during their meet-and-confer.

Yesterday, Chief Judge Connolly issued an order along similar lines—but outright canceling the Markman hearing. Like Judge Noreika did, the Court noted that the parties had failed to adequately meet-and-confer about a disputed term:

Plaintiffs first made their new proposal [to construe "tangent"] during the "meet and confer" discussion required by paragraph 13 of the Revised Scheduling Order. . . …
View

Court Orders In-Person Claim Construction Meet-and-Confer by Lead Trial Counsel, In the Courtroom in Delaware, Continuing Until Excused

Andrew E. Russell, March 3, 2023
Meet-and-Confer Claim Construction

Unhappy Attorneys
AI-Generated

Judge Noreika is well known at this point for requiring real, substantive meet-and-confers on claim construction. In multiple cases, she has directed parties to further meet-and-confer after finding their initial efforts insufficient.

She issued another such order this week, this time directing the parties to have what appears to be a supervised meet-and-confer, in person in the courtroom:

ORDER . . . The parties did not comply with the Court's February 13, 2023 Oral Order requiring a good-faith meet and confer. Instead, the parties spoke for just 20 minutes about 10 disputed terms, as well as "hearing logistics" and a proposal by MarkForged to request deferral of certain claim constructions until dispositive motions. There is no breakdown indicating …
View

Finding Short Meet-and-Confer Did Not Show Good Faith, Judge Noreika Orders In-Person Meet-and-Confer by Lead Trial Counsel

Andrew E. Russell, Dec. 28, 2022
Meet-and-Confer Claim Construction

Attorneys at Table
AI-Generated, displayed with permission

This is an interesting order from earlier this month that we never had a chance to post about.

In Ecobee, Inc. v. EcoFactor, Inc., C.A. No. 21-323-MN (D. Del.), the parties had a Markman hearing scheduled for December 8. As she often does, in the leadup to the hearing, Judge Noreika issued an order directing lead counsel for the parties to meet-and-confer to reduce the number of disputes:

ORAL ORDER . . . IT IS HEREBY ORDERED that, on or before 12/1/2022, local and lead counsel (i.e., those attorneys that will be leading trial) for the parties shall meet and confer and file an amended joint claim construction chart that sets forth the …
View

Court Criticizes Plaintiffs' "Heading-Scratching Decision" to Meet and Confer Only One Hour Before Deadline, Sua Sponte Strikes Part of Status Report

Andrew E. Russell, Feb. 22, 2022
Joint Status Report Sua Sponte

Clock
Tristan Colangelo, Unsplash

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 …

View

Judge Noreika Threatens Sanctions If Parties Don't Try to Agree on Claim Construction

Andrew E. Russell, Oct. 12, 2021
Meet-and-Confer Claim Construction

What I imagine claim construction arguments looked like
Immo Wegmann, Unsplash

Last week, Judge Noreika issued an interesting oral order regarding a claim construction dispute that was briefed—haphazardly, apparently—in the parties' summary judgment papers.

She criticized the briefing, ordered the parties to meet-and-confer and file ordinary claim construction briefing, and threatened sanctions if the parties don't try hard enough to reach agreement:

ORAL ORDER − In their summary judgment papers, the parties include arguments that either three or four additional claim terms must be construed by the Court. The parties' arguments are disjointed, do not focus on the intrinsic evidence and do not demonstrate any real understanding of what that other side's construction is. Thus, IT IS HEREBY ORDERED that, on or before 5:00 PM on …
View

Archive