As we've covered exhaustively, Delaware favors the use of contention interrogatories. As discovery requests go, these are often some of the more burdensome ones to deal with, and so the responding party will frequently respond with all manner of possible objections.
One response that I see from time to time is that a contention topic seeks information that is really the subject of an expert report, and thus that no response is necessary until the reports are due.
This was exactly the approach that the defendant took last week in Astellas Pharma Inc. et al v. Sandoz Inc., C.A. No. 20-1589-JFB-EGT, D.I. 779 (D. Del. May 6, 2025). The rog in question was related to damages, and sought "the parameters of any hypothetical negotiation(s) that Zydus contends would be relevant to the calculation of damages in this case, including the date such negotiation(s) would have taken place, the parties that would have been involved in the negotiation(s), and all relevant information that would have been considered by the parties at the time of the negotiation(s)."
The defendant neglected to substantively respond, and in opposing the motion to compel argued that the rog really sought expert testimony. Judge Burke disagreed and required the defendant to provide a narrative response:
The Motion is GRANTED and Zydus shall provide a supplemental response to ROG No. 22 that substantively addresses the questions asked in narrative form, by no later than14 days from today's date . . . Zydus' argument in opposition, i.e., that a request for such information should be denied because it "seeks disclosure of expert opinion[,]"--is wrong and in clear contravention of this Court's caselaw . . . Contrary to Zydus' position, (D.I. 402 at 2), it can provide narrative answers that addresses the categories of information sought by ROG No. 22, especially in light of Plaintiffs having provided prior discovery responses setting out their initial damages position.
Id. (internal citations omitted).
If the Court's view on this argument wasn't clear from the "clear contravention" language, Judge Burke also noted in a different order filed that same day that "Zydus' response on the ROG No. 22 issue had little merit, which may be relevant to any decision in the future regarding a Rule 37 issue."Id. at D.I. 780. So, TL;DR, I'd try and avoid this one in the future.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
