A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Meet-and-Confer

New Data Point: 45 Minutes of Meeting-and-Conferring Insufficient for "Multiple Discovery Disputes That Involve a Number of Broad Issues with Room for Reasonable Parties to Compromise"

Andrew E. Russell, Feb. 10, 2025
Meet-and-Confer

We'll all get it right eventually
Simon Ray, Unsplash

We've posted twice recently on Magistrate Judge Tennyson's practices regarding how long the parties should meet-and-confer before bringing a discovery dispute. In the prior posts, the parties presented a single discovery dispute issue. The parties initially met-and-conferred for 12 minutes, and the Court sent them back to meet-and-confer further. The Court later OK'd the dispute after they spent a total of 31 minutes on the issue.

On Friday, the Court issued an order in another case giving some more insight into this meet-and-confer requirement. In Media Content Protection LLC v. Dell Technologies, Inc., C.A. No. 20-1240-CFC-EGT (D. Del.), the parties filed a motion to raise three discovery issues with the Court, including two …

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Update on Monday's 12-Minute Meet-and-Confer Post, Plus Guidance from Court on Whether Motion to Stay Is a "Discovery Dispute"

Andrew E. Russell, Jan. 31, 2025
Motion to Stay Meet-and-Confer

Clock
Akram Huseyn, Unsplash

On Monday, we posted about how the Court had denied a motion to bring a discovery dispute, because a 12-minute meet-and-confer was not long enough.

If you were curious, as I was, about how long of a meet-and-confer would be sufficient, we now have a data point. The parties re-filed their letter after conducting an additional 19-minute meet-and-confer, and the Court granted their motion and permitted them to bring the dispute to the Court.

So the data points we have so far are that 12 minutes is insufficient, and that two meet-and-confers totaling 31 minutes (12+19) were sufficient.

There is obviously a range of times in between those numbers that might or might not …

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Court Denies Motion to Bring Discovery Dispute Because Meet-and-Confer Was Not Long Enough

Andrew E. Russell, Jan. 27, 2025
Discovery Disputes Meet-and-Confer

Will they use a phone like this? No. But I couldn't find a good image for
Will they use a phone like this? No. But I couldn't find a good image for "Zoom meeting where everyone but that one person has their camera off." Quino Al, Unsplash

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 …

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5-Body Problem

Nathan R. Hoeschen, June 13, 2024
Meet-and-Confer Discovery Dispute

Bringing a discovery dispute is a bit of a 3-body problem. At any given time, you've probably got a half dozen complaints with what the other side is doing. When one boils over into a dispute you have to grapple with whether you should just bring all of them—and risk looking unreasonable—or just address the most pressing and risk having to raise serial disputes, which might look even worse. The push and pull can quickly become insoluble.

Guillermo Ferla, Unsplash

Luckily, we got an Order from Judge Burke this week that should make this calculus slightly easier going forward.

The defendants in Bardy Diagnostics, Inc. v. Vital Connect, Inc., C.A. No. 22-351-CFC-CJB, D.I. 97 (D. Del. June 11, 2024) (Oral Order) brought the first discovery dispute of the case (by either party) via judge Burkes usual procedure of filing a letter listing the disputes.

The disputes read as the usual humdrum list of custodians not searched and rogs insufficiently answered. The only thing out of the ordinary, is that there were 5 of them included in the letter.

Judge Burke responded to the request for a teleconference the next day with ...

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Court to Parties: Finish Meeting-and-Conferring Before You File Your Discovery Dispute

Andrew E. Russell, Feb. 12, 2024
Discovery Disputes Impasse

"Hang on, judge. You can't just rely on what is in our letter briefs. We filed those three days ago!" AI Generated, displayed with permission

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 ...

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"If parties could decide not to follow Local Rules because they thought that the rules were not useful in their particular case, that would threaten the Court's ability to manage its docket."

Andrew E. Russell, May 15, 2023
Meet-and-Confer Discovery Dispute

Please Stay on the Path
Mark Duffel, Unsplash

The headline is a nice quote from a Judge Burke oral order last week in Bausch & Lomb Incorporated v. SBH Holdings LLC, C.A. No. 20-1463-GBW-CJB, D.I. 77 (D. Del. May 12, 2023).

There, the defendant moved to stay but apparently failed to meet-and-confer at all before moving. The plaintiff wisely called them out for failing to do so:

As an initial matter, it is undisputed that SBH did not attach a certification pursuant to D. Del. LR 7.1.1 to its Motion or letter brief; nor could it have, because there was no meet and confer between counsel. The first B+L heard about SBH’s Motion was in SBH’s letter to the Court …
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Check the Docket Before Failing to Appear for a Hearing

Emily DiBenedetto, April 25, 2023
Stipulation Meet-and-Confer

Broken Communication
Reid Naaykens, Unsplash

Parties can freely stipulate to many things in the District of Delaware, and often stipulations to extend deadlines are filed close to the last minute, especially where the parties are working toward agreement but ultimately cannot agree on the final filing in time (or else are having trouble connecting with the other side).

However, stipulations filed close to the Delaware witching hour (5:00PM EST) can be fraught with risk of the Court's denial, as we’ve seen in past heart-stopping examples. We’ve warned before that requests to move Court-scheduled conferences are in the “iffy” category, and combined with last minute filing, can end in disappointment for everyone, as shown in an oral order from Judge Noreika last week in Neurocrine Biosciences, Inc. v. Lupin Limited et al., C.A. 21-1042, D.I. 197 (D. Del. Jul. 16, 2021):

On April 17, 2023, the Court instructed the parties to talk to each other about their disputes so that a follow-up call with the Court (set for April 21, 2023) would be more productive than the prior call. On April 21, 2023, a few hours before the set call, the parties submitted a stipulation requesting the April 21 call be delayed. After further inquiries, it became clear that, in the five days after the Court directed the parties to TALK, they did not do so. The Court intended to address that during the April 21 call, but no counsel appeared for the call (notwithstanding that the Court had not granted the request for a delay). THEREFORE, IT IS HEREBY ORDERED that, should the parties not inform the Court that they have resolved their dispute in full by Tuesday April 25, 2023, lead trial counsel SHALL appear in person in Courtroom 4A on April 26, 2023 at 3:00 p.m. ORDERED by Judge Maryellen Noreika on 4/21/2023.

Judge Noreika previously indicated frustration with the magnitude of this particular discovery dispute (on search methods to find responsive documents), so the parties were on thin ice long before ...

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Judge Noreika: "The Court Will Not Act as a Negotiator to Whittle Down Overly Broad [Discovery] Requests."

Andrew E. Russell, March 17, 2023
Meet-and-Confer Discovery Dispute

Attorneys
AI-Generated, displayed with permission

Judge Norieka issued a notable oral order earlier this week in Neurocrine Biosciences, Inc. v. Lupin Limited, C.A. No. 21-1042-MN (D. Del.).

The context is not fully clear from the docket, but it looks like the parties contacted the Court to initiate a discovery dispute regarding the sufficiency of the plaintiff's document collection efforts. But, instead of issuing the typical order starting the process, Judge Noreika ordered the parties to meet-and-confer again and set some expectations as to how the Court will handle the dispute:

ORAL ORDER - The parties have requested a discovery dispute teleconference regarding Defendants' request for discovery into the search methods Plaintiff used to find responsive documents. IT IS HEREBY ORDERED that the parties shall meet and confer again. Thereafter, on or before 5:00 PM on 3/20/2023 [five days from the order], the parties shall provide the Court with the current version of the discovery requests, explaining what part or parts remain in dispute. The Court will not act as a negotiator to whittle down overly broad requests. Therefore, Defendants should propose requests of appropriate scope with the understanding that the Court may simply deny requests that are overly broad on their face.

It looks like the Court may be trying out a more efficient way to resolve disputes over discovery requests.

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Another D. Del. Judge Orders an In-Person Claim Construction Meet-and-Confer, and Cancels Markman (And: Some Thoughts on Claim Construction Meet-and-Confers)

Andrew E. Russell, March 8, 2023
Meet-and-Confer Claim Construction

Andrew E. Russell

Just last week, we wrote about Judge Noreika ordering an in-person meet-and-confer to occur between lead trial counsel regarding claim terms, in the courtroom in Delaware, and "continuing until excused by the Court." In ordering the in-person meet-and-confer, Judge Noreika noted that the parties had "spoke[n] for just 20 minutes about 10 disputed terms" during their meet-and-confer.

Yesterday, Chief Judge Connolly issued an order along similar lines—but outright canceling the Markman hearing. Like Judge Noreika did, the Court noted that the parties had failed to adequately meet-and-confer about a disputed term:

Plaintiffs first made their new proposal [to construe "tangent"] during the "meet and confer" discussion required by paragraph 13 of the Revised Scheduling Order. . . …
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Court Orders In-Person Claim Construction Meet-and-Confer by Lead Trial Counsel, In the Courtroom in Delaware, Continuing Until Excused

Andrew E. Russell, March 3, 2023
Meet-and-Confer Claim Construction

Unhappy Attorneys
AI-Generated

Judge Noreika is well known at this point for requiring real, substantive meet-and-confers on claim construction. In multiple cases, she has directed parties to further meet-and-confer after finding their initial efforts insufficient.

She issued another such order this week, this time directing the parties to have what appears to be a supervised meet-and-confer, in person in the courtroom:

ORDER . . . The parties did not comply with the Court's February 13, 2023 Oral Order requiring a good-faith meet and confer. Instead, the parties spoke for just 20 minutes about 10 disputed terms, as well as "hearing logistics" and a proposal by MarkForged to request deferral of certain claim constructions until dispositive motions. There is no breakdown indicating …
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