As Delaware counsel, I sometimes have to say something along the lines of "the Court is going to see right through that" or "nobody is as sly as they think they are."
Usually this is in the context of something like slipping wholesale invalidity arguments into a claim construction brief (seriously? You think you are going to win SJ of anticipation at claim construction?) or "just flagging" a completely unrelated and irrelevant issue in a discovery dispute.
I saw an example of this last week in Speyside Medical, LLC v. Medtronic Corevalve, LLC, C.A. No. 20-361−GBW−CJB, D.I. 290 (D. Del. Jun. 26, 2023).
In Speyside, the parties are three years into the case and well past the close of fact discovery. Back in 2021, they agreed to and the plaintiff ran a set of 30 search terms. Defendant then changed counsel.
Later, defendant’s new counsel discovered that the plaintiff had failed to run its terms against some of its documents based on discovery it received from a third party. In response, its new counsel moved to compel the plaintiff to run new search terms against its entire production.
The Court saw right through that:
ORAL ORDER: The Court, having reviewed Defendants' discovery dispute . . . . hereby ORDERS that [the motion is] DENIED. In Defendants' opening letter brief, nearly all of their discussion was focused on the fact that Plaintiff's original run of search terms against the electronic documents of their custodians was flawed, that Plaintiff should have recognized this earlier, and that this prejudiced Defendants. . . . But the Court agrees with Plaintiff that the motion amounts to Defendants' "use [of] a vendor error... to discard the parties' agreement on the scope of email discovery." . . . In other words, if the key issue here is the prejudice caused to Defendants due to Plaintiff's original flawed search, then if appropriate, Defendants should have then made a case for sanctions, as in the Chevron case that they cite in their opening brief. . . . But Defendants did not try to do that. Instead, they have used Plaintiff's mistake as a way to try to re−negotiate a carefully agreed−upon set of search terms in the case, without making any real attempt in their opening brief to explain why there is good cause to add new search terms (i.e., by providing detail about why the terms relate to relevant issues in the case and/or why Defendants could not earlier have known to suggest that these search terms be run). As a result, Defendants did not make the required showing of good cause to warrant the use of additional search terms.
Speyside Medical, LLC v. Medtronic Corevalve, LLC, C.A. No. 20-361−GBW−CJB, D.I. 290 (D. Del. Jun. 26, 2023).
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