There are a few words I dread seeing in an order. Some are obvious—"egregious," "sanctions," "nonsensical," "balding," etc. Others I only learned to fear after seeing them used in an opinion—"valiant," "sporting," "leakage" (don't ask).
In an opinion issued over the blog's break, Judge Williams gave new fuel to the pyre of woe that is my subconscious, and added a new word to my list: IRONY
Even without the irony, Chervon (HK) Ltd. v. One World Techs., Inc., C.A. No 19-1293-GBW, D.I. 394 (D. Del. Mar. 26, 2024) was an unusually interesting discovery dispute. In that case, the parties agreed to a case narrowing procedure wherein, after final contentions, the defendant was to elect no more than 3 grounds per asserted claim. When the defendant served that election, plaintiff complained that it included grounds that were not charted in the final contentions. In an apparent attempt to moot the issue, the defendant then served (without seeking leave) new contentions that did chart all of the elected grounds. The plaintiff then moved to strike the portions of the election not previously charted and the new contentions in their entirety.
Judge Williams granted that motion, striking most of the elected grounds and all of the new contentions, in particular noting that the defendant had not sought leave to serve them. Unfortunately this left the defendant without any elected grounds for several claims, and so they served a new election of asserted grounds including only grounds which were charted in the original, unstruck contentions (with a bit of a fudge factor). Shortly after service they moved for leave to submit the new contentions, and plaintiff cross-moved to strike them.
Which is where we get to the IRONY of it all:
The Court finds that Defendants have been diligent. . . . . While the Court notes the irony that Defendants, upon receiving a Court order noting that "Defendants were required to seek leave of the Court before serving" new contentions, then turned around and served new contentions and only sought leave of the Court after serving those contentions, the practical result was to put Plaintiffs on notice sooner and include the theories in the expert reports. Moreover, Defendants promptly sought leave once the parties met and Plaintiffs indicated they would oppose the new contentions.
Chervon, at 3-4 (internal citations omitted).
As you probably gathered from the opening sentence there, the Court ultimately did allow the new election in, despite the defendant only moving for leave after service. I still internally clenched up at seeing the phrase "despite the irony."
The lesson I draw from this series of events is that asking for permission after service is better than waiting for the other side to move to strike.
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