I fancy myself a bit of an aficionado of the local rules (a petty fiefdom, I know, but I rule it fairly). Like any Delaware lawyer I can rattle off the big ones—7.1.1, 16.4., 26.2 and the like—and I can even pull some b-sides out in a pinch.
But I must say I had to have a real think when I read Judge Bataillon's recent order in Astellas Pharma Inc. v. Ascent Pharms., Inc., C.A. No. 23-486-JFB-EGT (D. Del. July 28, 2025) and saw a citation to D. Del. LR 5.4(b)(3).
Obviously you'll all have this one memorized, but just in case any lay readers are about, this little gem is below:
If depositions, interrogatories, requests for documents, requests for admissions, answers, or responses are to be used at trial or are necessary to a pretrial or post trial motion, the verbatim portions thereof considered pertinent by the parties shall be filed with the Court when relied upon
I would guess that the reason this one didn't immediately spring to mind is that it codifies the sensible practice of attaching things you want the Court to consider.
But you can see how this might have been missed by the defendant in Astellas. There, the defendant moved for leave to add a counterclaim of inequitable conduct, based on several recent inventor depositions. In their motion to leave they attached their proposed amended pleading—which apparently summarized but did not quote the depositions—but did not actually attach the transcripts themselves.
At the hearing on the motion, Magistrate Judge Tennyson explained the difficulty with this approach, and then went on to deny the defendant's request for leave to submit the transcripts to the Court after the hearing, noting that:
there is a reason for that rule, which is how am I supposed to know what exactly was said or what the context was? I mean, you all are seasoned litigators, you figure out how testimony helps you in the context in which it appears. I wasn't given that. It's troubling. And I think that"s why there is another rule that says I can decide the motion against you if you fail to comply with the local rules on motions.
Id. at D.I. 266-1, 14:1-14:9.
Judge Bataillon, ruling on objections to the ruling, agreed simply noting that the Magistrate Judge had "correctly observed Ascent failed to comply with the applicable procedural rules and determined that Ascent’s proposed amendments would prejudice Astellas and waste judicial resources."
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
