Thought Leadership

Key Points:

• The Superior Court of Delaware’s “meet and confer” requirement is mandated by the notice provision articulated in Del. R. Civ. P. Super. Ct. 37(a).
• The Rule has long been interpreted by counsel to require only an email or letter to opposing counsel attempting to quash a discovery dispute prior to filing motions and a request for court resolution of same.
• More recently, the Superior Court of Delaware is trending toward requiring actual in-person and/or telephonic communications amongst counsel in an attempt to resolve discovery disputes before agreeing to intervene to hear and decide such matters on behalf of the litigants.
• It is unclear whether this new trend is due to more recent docket backlogs and, therefore, temporary or if it will be adopted by other members of the Superior Court of Delaware judiciary.

Delaware courts have long recognized the obligation of the parties to a civil action to engage in a meaningful “meet and confer” conference in an attempt to resolve discovery disputes prior to such issues being heard and decided upon by the bench. Historically, the “meet and confer” obligation has been vigorously enforced and adopted by the Delaware Court of Chancery, See Danenberg v. Fitracks, Inc., 58 A.3d 991, 1003 (Del. Ch. 2012) (Delaware lawyers “have a duty to meet and confer in a good faith effort to resolve differences.”), while the Superior Court of Delaware has made only passing reference to the same, without fully defining the obligations of the parties. The primary source of guidance for litigants in the Superior Court is enumerated in the language set forth in Delaware Rule of Civil Procedure for the Superior Court of Delaware, Rule 37, which states, in pertinent part:

Rule 37 - Failure to make discovery: Sanctions; 
(a) Motion for order compelling discovery. - A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows…” 

Del. R. Civ. P. Super. Ct. 37(a) (emphasis added).

Previously, counsel for a party involved in a discovery dispute were considered to have met their “meet and confer” obligation by simply attempting communication with opposing counsel by letter, email, or other correspondence setting forth the alleged discovery deficiencies. In Mine Safety Appliances Co. v. AIU Ins. Co., 2014 WL 4724571, at *1 (Del. Super. Sept. 19, 2014), for example, the Superior Court held that a party’s mere attempt to discuss deposition dates with opposing counsel satisfied their “meet and confer” requirement. However, more recently, the Superior Court seems to be making a case for more substantial communications on the part of the litigants in an effort to resolve discovery disputes on their own as a prerequisite to being heard by the court.

In Megen Cummings v. Ronald James Landry, et al., C.A. No. N18C-07-266 ALR (Del. Super. June 28, 2021), the plaintiff filed a motion to compel certain requested documents, as well as more sufficient answers to her formal written discovery demands. In conjunction with her motion, the plaintiff also filed a notice of hearing, scheduling the motion to be presented to the court via oral argument. In a letter opinion, dated June 28, 2021, the court declined to hear oral argument on the plaintiff’s motion and the defendant’s response in opposition thereto, stating:

[i]t is plain from the record that the parties have not satisfied their obligation to engage in a meaningful meet and confer before resorting to motion practice. To be clear: a meet and confer does not mean sending an email or a letter. Meeting and conferring requires counsel to communicate by phone or in person. The parties’ written submissions reflect that a candid discussion between counsel may resolve most, if not all, of the outstanding issues. If, after complying with the obligation to meet and confer, there are discovery issues that remain in dispute, the Plaintiff may refile her Motion. At this time, the Motion is DENIED WITHOUT PREJUDICE and the hearing scheduled for July 1, 2021, is CANCELLED. Id.

The court’s sentiments represent the first time in the history of Superior Court of Delaware jurisprudence where the court specifically outlined that the “meet and confer” obligation requires more than just an email or letter attempt. The court required a communication by phone or in person wherein meaningful discussions must be had. 

In reviewing decisions of the Superior Court of Delaware in certain discovery disputes since Cummings, it seems that the holding set forth therein is one that is gaining traction. In De Lage Landen Fin. Servs., Inc. v. Spinal Techs., LLC, 2021 WL 3520629, at *7 (Del. Super. Aug. 10, 2021) court declined to hear oral argument on a party’s motion to quash and a motion for protective order until such time as the parties had had the opportunity to “meet and confer” to discuss the scope of certain discovery demands. In Tijanna Richardson v. Stanley Access Technologies, C.A. No. N21C-10-115 AML (Del. Super. March 3, 2022), the court declined to hear oral argument on the sufficiency of a party’s answers and responses to demands for formal written discovery until after such time as the parties could “meet and confer” to discuss same. The court in Legion Partners Asset Mgmt., LLC v. Underwriters at Lloyds London, 2022 WL 289940, at *2 (Del. Super. Jan. 31, 2022) issued a similar ruling. It held that the issue as to whether or not an award of attorney’s fees was appropriate was not yet ripe because the parties had yet to engage in a meaningful “meet and confer” conference to discuss the potential award.

It is evident that the Superior Court bench is trending toward interpreting Rule 37 to require more than a simple written attempt to contact opposing counsel regarding a discovery dispute prior to involving the court. What remains to be seen is whether this required “human contact” will continue as the docket (hopefully) becomes less congested and whether this interpretation will be adopted by other members of the Superior Court.
 
*Lisa is a shareholder in our Wilmington, Delaware, office. She can be reached at 302.552.4339 or lmgrubb@mdwcg.com.

_{Defense Digest, Vol. 29, No. 2, June 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2023 Marshall Dennehey. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}