Judge Burke issued an oral order late last week addressing a discovery dispute where a defendant requested that the Court order plaintiff to apply more e-mail search terms. He denied the request, noting that the parties were clearly still meeting-and-conferring:
ORAL ORDER: The Court, having reviewed the portion of the pending motion regarding discovery disputes, (D.I. 198), in which Defendant requests that the Court order Plaintiff to utilize 24 additional ESI search terms ("Defendant's request"), and the briefing related thereto, (D.I. 204; D.I. 212; D.I. 214), hereby ORDERS that Defendant's request is DENIED, without prejudice to renew. That request, as briefed, is clearly unripe. In the briefing, the parties, including Defendant, alternatively described the issue as one as to which the parties were: (1) "continu[ing] their meet and confers [such that Plaintiff] offered some supplemental ESI searches and... [Defendant] requested some modifications[,]" (D.I. 204 at 2); (2) "still negotiating on the scope of additional search terms and are not at an impasse" and "working... to narrow the additional search terms[,]" (D.I. 212 at 1); and (3) "continu[ing] to discuss matters" in that Defendant "intends to submit new search terms [that] should resolve all of [Plaintiff's] alleged criticism" such that the matter "should be resolved" in the future, (D.I. 214 at 1).
Topia Technology, Inc. v. Egnyte, Inc., C.A. No. 21-1821, D.I. 226 (D. Del. Feb. 9, 2024).
He explained why the Court requires parties to finish meeting-and-conferring before bringing the dispute:
If the Court let parties file discovery dispute motions over potential disputes that they were still negotiating over and that were still in flux, the Court's docket would quickly be overwhelmed by these "maybe" problems. Among other difficulties with such a practice, the Court would not be able to properly prepare to address that type of "dispute" at a hearing, since the Court would not have been provided answers to key questions relevant to resolving the matter (here, questions like "What terms are still in dispute?" or "What is the argument as to those particular terms as to why they reach too broadly?").
Id.
Interestingly, the Court said that it will still discuss the issue with the parties at a scheduled teleconference:
On Monday's videoconference, the Court will briefly address with the parties what is the current status of this issue, and try to figure out what to do about it going forward.
Id.
When Can Parties Bring a Dispute?
The Court here didn't set out any new rules about when a party can bring a dispute. Out-of-town counsel often think that the magic word is "impasse"—that the parties have to agree they are at an impasse before bringing a dispute.
That's basically right, but there is no local rule requiring an "impasse" (in fact, there is no local rule about discovery disputes at all). Instead, the judges' form scheduling orders require that the parties are "unable to resolve" the dispute:
Should counsel find, after good faith efforts—including verbal communication among Delaware and Lead Counsel for all parties to the dispute—that they are unable to resolve a discovery matter . . . , the parties shall [initiate a discovery dispute]
See, e.g., Judge Burke's form scheduling order.
What does that mean, exactly? Unable to resolve the dispute immediately? Unable to resolve the dispute in a reasonable span of time?
I don't know of any firm guidance from the Court on this issue. But in my experience this language usually means (1) that each side has settled on their basic position that they will present to the Court; (2) that they've disclosed it to the other side; (3) that the other side is not changing their position in response; and (4) that the parties have met-and-conferred (not necessarily in that order).
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