Worst place I've seen for a meet-and-confer? The courtroom, during a break in a trial -- when a juror from the trial wandered in.AI-Generated, displayed with permission
Delaware's Local Rule 7.1.1 requires, in cases that don't involve pro se parties, that the parties must have a verbal meet-and-confer before either party files a non-dispositive motion:
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. …
Earlier this week, visiting Judge McCalla issued an order denying a motion to preclude a third-party factual declaration. Along the way, the Court addressed an ethics rule that should probably come up more often than it does.
As set forth by the Court, ABA Model Rule 3.4(f) precludes attorneys from requesting that third parties withhold relevant information from another party:
Model Rule 3.4(f) states a “lawyer shall not . . . request a person other than a client to refrain from voluntarily giving relevant information to another party.”
Arctic Innovations, LLC v. Edwards Lifesciences Corp., C.A. No. 23-158-JPM, at 4 (D. Del. June 4, 2025).
The Delaware Chapter of the Federal Bar Association held its annual lunch today and, as usual, the District and Bankruptcy Courts provided updates on the state of the courts. There wasn't a lot of new information this year, but here are some quick notes on some relevant items:
District court case filings here in D. Del. were down only 2%, compared to 14% nationally
Criminal filings were up 14%
There was a 7% drop in patent case filings, but we still have 39% of all ANDA cases
We are still the biggest court for competitor case filings
The Court strives to be fair and not partial to either plaintiffs or defendants
Entering into a stipulation is easy. You say we both agree to move this date or not assert that patent, and normally the court signs it and everyone goes about their business.
Getting out of a stipulation is harder.
AI-Generated, displayed with permission
If you're wondering just how hard, I present to you Judge Bataillon's opinion this week in Astellas Pharma Inc. v. Zydus, Inc., C.A. No. 20-1589-WCB (D. Del. May 30, 2025).
In that case Judge Bataillon resolved the rare "motion for relief from stipulation." The parties had long ago entered into a case narrowing stipulation in which the defendants dropped their obviousness and anticipation defenses.
Following a trial, then an appeal and a remand, the case was back in Judge Bataillon's hands, and was a bit more complicated. In the interim, it had been consolidated with related cases against other defendants and new claims from a related patent.
Because those other claims and other defendants were not bound by the prior stipulation, Lupin and Zydus argued that ...
This is something you don't see often. In Kaneka Corporation v. Designs For Health, Inc., C.A. No. 21-209-WCB (D. Del.), the plaintiff contacted the Court after defendant's counsel offered only a single potential date for the deposition of the defendant's expert, and that date was just five days (and three business days) after the expert's non-infringement report.
The case has been going since 2022, with many twists and turns and amended scheduling orders. One of the most recent scheduling orders set deadlines of May 16 for opening expert reports and May 30 for responsive reports, with the close of expert discovery to close on June 13.
"Back in my day, we locked our first year associates in a room stacked with banker's boxes for weeks on end! None of this 'search term' mumbo jumbo!"AI-Generated, displayed with permission
Judge Williams issued a lengthy decision today in GlaxoSmithKline Biologicals SA v. Pfizer Inc., C.A. No. 24-512-GBW (D. Del.), addressing a number of disputes relating to proposed protective and ESI orders in multiple related actions.
There is a lot of interesting material in the decision, but one ruling in particular caught my eye, because it's an issue that comes up a lot: whether a party has to use search terms to search ESI.
Most, but not all, of our judges have adopted the Court's Default Standard for Discovery, Including Discovery of Electronically Stored Information ("ESI")—a document that, despite it's catchy name, is usually referred to as the "Default Standard."
The Default Standard places the option of using search terms in the producing party's hands:
If the producing party elects to use search terms to locate potentially responsive ESI, it shall disclose the search terms to the requesting party. Absent a showing of good cause, a requesting party may request no more than 10 additional terms terms to be used in connection with the electronic search. Focused terms, rather than over-broad terms (e.g., product and company names), shall be employed. The producing party shall search (i) the non-custodial data sources identified in accordance with paragraph 3(b); and (ii) emails and other ESI maintained by the custodians identified in accordance with paragraph 3(a).
Thus, producing parties sometimes decide not to use search terms, and to instead review and produce their ESI the old-fashioned way (potentially including hours of brutal contract-attorney document-by-document review).
Occasionally the opposing party will ask the producing party to use search terms. In cases governed by the Default Standard, I would expect a producing party to feel little pressure in responding "no," since the Default Standard recognizes that using search terms is optional.
Disco on disco, babyAI-Generated, displayed with permission
Discovery on discovery -- i.e., discovery asking how you're collecting documents, or when you started your litigation hold, or why all your documents smell like bubblegum -- is generally not allowed in Delaware (and most other districts I'm aware of). To get that sweet, sweet, disco on disco, you need to make a "threshold showing that significant, relevant, and non-cumulative information has been withheld or overlooked." British Telcoms. PLC v. IAC/Interactivecorp,. C.A. No. 18-366-WCB, 2020 U.S. Dist. LEXIS 37271, at *21 (D. Del. Mar. 4, 2020). This is a pretty big ask in the context of a discovery dispute, so we only rarely see the issue come up.
We missed an interesting decision from Judge Fallon last month. In Marquinez et al v. Dole Food Company Inc., C.A. No. 12-695-RGA-SRF, D.I. 582 (D. Del. Apr. 24, 2025), Judge Fallon rejected an attempt to "recycle" an expert opinion from a prior, related action.
Apparently the plaintiff had previously retained the experts, and attempted to re-use their prior expert opinions, by admitting the transcript of their prior testimony:
The Hendler Declaration confirms that both witnesses were formally retained as expert witnesses in a prior litigation, they served expert reports in the prior litigation, and both were asked but declined to serve as retained expert witnesses in this case. (D.I. 580 at ¶¶ 9-13) Plaintiffs …
The difficulty with a request for admission is right there in the name. When someone asks you to admit that you did something, it's only natural that you push back a bit, whatever the admission may be.
Admit that you were the one who brought the potato salad!
Ummm ... noAI-Generated, displayed with permission
But even if one overcomes these hurdles, there are further difficulties in RFA practice, waiting under every upturned rock. For instance, many scheduling orders place a limit on the number of RFAs that can be propounded, and so, like with rogs, there may be a dispute over whether a given RFA covers too much ground. Such was the case in Friday's decision in Scale Biosciences, Inc. v. Parse Biosciences, Inc., C.A. No. 22-1597-CJB, D.I. 410 (D. Del. May 23, 2025).
In that case, the plaintiff sent RFAs asking the defendant to "Admit that the following graphic illustrates, at least in part, the operation of the Parse Mini, Parse Mid Products, and Parse Mega Products," and several similar RFAs directed to several products. Defendant objected that ...
Blogging about legal topics as an attorney can be tough. We at IP/DE post very frequently for a legal blog written by active, practicing attorneys, and I've occasionally been asked by other attorneys how it's going. I thought I'd offer some thoughts on legal blogging here at IP/DE, after 5 years of it, and about the successes and challenges we've faced.
(This was originally part of our Celebrating 5 Years post, but it was honestly kind of a buzz kill. So I followed my wife's wise advice to "split that part into its own post and add a sad clown face.")
One post per day adds up
IP/DE started as a personal project during the initial …
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