Vice Chancellor J. Travis Laster of the Delaware Court of Chancery and Professor Elise Bernlohr Maizel recently published a law review article entitled Discovery as a Compliance Problem, available at this hyperlink, 50 J. Corp. L. 53 (2024), which should be read by all lawyers involved in commercial litigation in Delaware.
Highlights include the following bullet points:
- Civility expectations, and a reminder that the duty of a lawyer to the Court supersedes the duty to a client. See pages 73-77.
- There is no such thing as “local counsel” in Delaware. That is, Delaware counsel will be held responsible for all court filings and all positions taken–even if out-of-state counsel is taking the lead. See footnotes 148-149 and accompanying text.
- Deposition rules in Delaware impose more restrictions and duties on lawyers compared to many other states. See page 77.
- Deadlines in scheduling orders are strictly enforced in Delaware. See page 79.
- Privilege may be waived if a privilege log is not properly compiled. See pages 79-80.
- Boilerplate objections to discovery requests are not truly replies at all–especially when the objection does not make clear what exactly is being withheld and what is being produced. See pages 80-82. See also Del. Ct. Ch. R. 34(b) (requiring specific objections and explanations about what is being withheld based on objections.)