We haven't had many posts yet on the Court's newest magistrate judge, Judge Tennyson. But we got an interesting data point on Friday when the Court ruled on a motion to schedule a teleconference to resolve a discovery dispute.
In Inari Medical, Inc. v. Inquis Medical, Inc., C.A. No. 24-1023-CFC-EGT (D. Del.), Chief Judge Connolly referred all discovery disputes to Judge Tennyson. Shortly thereafter, the parties submitted a form motion following her guidelines to initiate a discovery dispute.
The motion identified the amount of time spent in the meet-and-confer:
The following attorneys, including at least one Delaware Counsel and at least one Lead Counsel per party, participated in a verbal meet-and-confer (by telephone) on the following date: January 17, 12 minutes. The parties have also corresponded at length on that issue since September 17, 2024.
Id., D.I. 27 at 1. The dispute involved access to and use of compiled third-party investigation materials:
Whether [plaintiff] Inari’s litigation counsel may have access to, and use for this case, certain materials already compiled by a third-party forensic investigator related to Inari’s claims at issue.
Id.
In response, the Court held that 12 minutes cannot be enough time for the parties to have met-and-conferred on this dispute, and denied the motion without prejudice:
ORAL ORDER - IT IS HEREBY ORDERED that Plaintiff's motion for a discovery dispute teleconference (D.I. 27) is DENIED without prejudice to renew. Notwithstanding the fact that the parties have "corresponded at length" about the discovery dispute raised in Plaintiff's motion, the Court is unconvinced that a single meet-and-confer of twelve (12) minutes is sufficient to raise this dispute with the Court. Plaintiff may refile its motion if the parties are unable to reach a resolution after engaging in additional efforts to meet and confer in good faith (i.e., in person or by telephone). ORDERED by Judge Eleanor G. Tennyson on 1/24/2025. (lah) (Entered: 01/24/2025)
Complying With an Order Like This Can Be Kind of Hard
The Court has in recent years sometimes taken issue with the length of time parties have spent meeting-and-conferring, particularly with regard to claim construction.
That has led close court-followers like myself to encourage parties to spend more time meeting-and-conferring, especially on claim construction issues.
But it can be surprisingly difficult. Even when both parties acknowledge that the goal is to spend more time to make sure that they have really engaged in a good-faith meet-and-confer and explored the issues and each others' positions, it's easy to just run out of things to talk about.
If there is only one straightforward claim term at issue, for example, and in 10 minutes you've already discussed each others' positions on that term and understand them, what's left to do? If one side's construction leads to infringement and the other side's avoids infringement, and the experienced counsel on both sides already understand the risks of their respective positions, there may not be a lot of room for agreement.
Anyway, here are some quick ideas for what the parties in a situation like this might discuss on a subsequent meet-and-confer call, if they haven't already:
- The case law (here, the law on production of factual investigation materials)
- Whether they agree on the basic rule (here, that pre-litigation factual investigation materials are or are not privileged and work product)
- Whether they agree about the basic facts (here, perhaps, whether the investigation was a factual investigation, whether it included legal advice, and whether it was performed in anticipation of litigation)
- Whether they could agree on the production of some limited material or information to test those basic facts (maybe the engagement letter, if any, for the forensic investigator, information about timing or structure of the investigation, etc.)
- Whether there is a reduced scope of discovery they could agree to (maybe only the factual material provided to/from the investigator, a redacted version of a report, a short deposition that is limited in scope, etc.)
- Whether the meet-and-confers and communications to date have been sufficient or not (that should get everyone talking . . .)
Going forward, it will be interesting to see what length of verbal meet-and-confer tends to be sufficient for these kinds of discovery dispute motions, and to whether/to what extent the other judges may adopt this practice.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
