One of the more common questions to Delaware counsel is "do I need an attorney declaration to accompany exhibits?"
The answer, thankfully, is no. No Delaware rule requires them—you can attach those suckers right to your brief and be done with it. Easy peasy (legally speaking).
The lone place I do see them occasionally used is in support of summary judgment motions. One reason is that there's often a lot of exhibits and a declaration can act as a convenient table of contents. I've also sometimes seen it suggested that an attorney declaration might shield the attached exhibits from challenges under FRCP 56(c)(2) "that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." How exactly it might do so is not clear, but I've never seen a decision on the issue going either way.
Until today.
The attorney declaration in MirTech, Inc. v. AgroFresh, Inc, C.A. No. 20-1170-RGA (D. Del. Mar. 23, 2023) (Mem. Op.) was of the usual sort—a representative entry is below:
8. Attached to this declaration as Exhibit 5 is a true and accurate copy of a letter sent
from Matthew Johnson to Eric Williams on April 10, 2019, produced in this matter as
AgroFresh00002270.
Id., D.I. 73.
The Plaintiff argued that none of the attached exhibits could be considered because:
- As an attorney for one of the parties, he could not testify at trial to provide the requisite foundation for the exhibits, and
- he lacked personal knowledge of many of the exhibits
Now, at least the first point here is true. A lawyer testifying on behalf of their client at trial is a scenario reserved for the darker realms of the Law & Order extended universe. And is appears correct that many of the exhibits included communications that the attorney was not originally privy to. Judge Andrews, however, was unswayed:
The Mir Parties argue that the Stover Declaration is inadmissible for a variety of reasons. First, the Mir Parties argue the declaration and exhibits should be ignored because Mr. Stover, as AgroFresh's attorney, cannot testify in this case. I disagree. He can submit a declaration. Mr. Stover's declaration mostly describes Agro Fresh documents produced in the litigation. Mr. Stover provides the corresponding Bates Number for exhibits 1-8.
. . .
Therefore, Mr. Stover' s declaration and exhibits are admissible evidence.
Id. at 15.
Unfortunately (and a bit contrary to my clickbait transition earlier (sorry!)) the Court did not address the larger question of whether any declaration was required at all for the exhibits. We'll just have to wait for another challenger.
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