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 (D.I. 60) attempting to explain why it had failed to comply with the Court’s Order to provide its constructions of disputed terms in the Joint Claim Construction Chart. SBH then sought consent by e-mail, and B+L declined to provide it. Rather than seeking a meet and confer, SBH then simply filed its letter brief. That alone is grounds to deny the Motion.
D.I. 71 (answering letter brief). The plaintiff was somewhat flip in its response:
Regarding the meet and confer issue raised in plaintiffs’ response brief (D.I. 70), the plaintiffs admit defendant had sought a stipulation for a stay, but plaintiffs summarily rejected the idea without any reason. Also, plaintiffs’ counsel and defense counsel had previously discussed orally and in writing the substance of the pending 12(c) motion, i.e., plaintiffs’ claims are barred as a matter of law. Plaintiffs summarily rejected the defendant’s position. Thus, any further meet and confer would have been a needless time consuming and expensive exercise in futility as proven by the plaintiffs’ response letter brief.
D.I. 72. The Court did not agree:
ORAL ORDER: The Court . . . hereby ORDERS that the Motion is DENIED for the reasons that follow: (1) First, the Motion is denied because Defendant did not follow D. Del. Local Rule 7.1.1's requirements that, inter alia, the parties have an oral meet and confer in order to attempt to resolve the stay-related issues discussed in the Motion, before the Motion was filed. . . . Defendant's assertion that actually attempting to follow the Local Rule's dictates would have been a "needless time consuming and expensive exercise in futility" is no excuse. . . . 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. And it would also wrongfully turn parties into judges.; (2) The Court also denies the Motion on the merits. . . . .
That quote looks like one bookmark in your mind (or in your browser - Ctrl-D), because it could be handy down the line, particularly if you are local counsel in Delaware.
Gotta Do It
Surprisingly, that wasn't the only time this came up last week. Judge Hall also issued the following oral order in Allergan, Inc. v. Revance Therapeutics, Inc., C.A. No. 21-1411-RGA-JLH, D.I. 128 (D. Del. May 11, 2023) after the parties seemingly failed to adequately meet-and-confer:
ORAL ORDER: Having reviewed the parties' letter briefs . . . regarding their Motion for Teleconference to Resolve Discovery Dispute . . . , it is hereby ORDERED that the teleconference scheduled for tomorrow, May 12, 2023, is CANCELLED and that Plaintiff's motion is DENIED without prejudice to renew. It is further ORDERED that the parties and third-party BioSentinel shall meet and confer regarding BioSentinel's proposal at D.I. 126, Ex. A, which appears to the Court that Plaintiff has not seen before today. If a dispute (regarding confidentiality, scope, or something else) remains after the meet and confer, the parties may resubmit a motion for a teleconference. If the parties come to an agreement, they may, if necessary and desired, submit a proposed order for the Court to enter.
The Court has been focused on promoting meet-and-confers lately—including for the past couple of years. So don't forget to meet-and-confer, and remember that you need more than a frantic last-second call between Delaware counsel.
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