It's always good to know the limits when it comes to discovery disputes. In some cases, parties just can't seem to work together on discovery, and the parties end up bringing a lot of disputes.
At some point, the number of disputes may push the Court over the line. Famously (in Delaware—so perhaps not "famously" at all), former Chief Judge Sleet used to limit parties to three discovery disputes in patent cases before requiring them to seek leave. I don't know of any similar explicit limits set by any of our current judges, but pushing things too far can still result in unwanted consequences for the parties.
That's what happened last month in Natera, Inc. v. CareDx, Inc., C.A. No. 20-038-CFC-CJB (D. Del.). After the parties filed three disputes in two months on nine topics, Judge Burke ordered that further disputes would be in person:
ORAL ORDER: In light of the fact that the parties have requested the scheduling of a discovery dispute teleconference three times in the past two months regarding nine disputes, . . . the Court hereby ORDERS that the procedures for discovery disputes set out in the Amended Scheduling Order . . . shall be amended as follows: With regard to any further discovery disputes among the parties, the Court will hear argument regarding those disputes with counsel appearing in person in Courtroom 2A. Absent further amendment to this Order, following the February 27, 2023 discovery dispute teleconference, the Court will no longer hear argument on such motions during a teleconference. The process for briefing such disputes will otherwise remain the same as set forth in the Amended Scheduling Order.
Historically, in-person discovery dispute conference are certainly not at all unheard of in D. Del. My recollection is that Judge Andrews, when he took the bench, initially required parties to appear in-person for things like scheduling conference and discovery disputes. I also recall a number of in-person discovery dispute conferences before Judge Sleet as well.
But the process of traveling to Delaware to bring a dispute—or relying on Delaware counsel, who will need to get up to speed on the record—certainly drives up the cost of those disputes for the parties.
So far, it looks like the order may have had the desired cooling effect. In the nearly two months since the Feb. 1 order, the parties have brought no further disputes.
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