TowerHill Wealth Management v. The Bander Family Partnership, L.P., No. 3830-VCS (August 3, 2009), read letter decision here.
Kevin Brady, a highly respected Delaware litigator, provided the synopsis for this unusual case.
Plaintiffs moved for summary judgment in this decision where the Court of Chancery was “troubled that the defendant seems to be more motivated by a desire to enmesh the plaintiffs in an unfocused discovery process that will be dragged out for far too long than is justifiable and far too extensive than is warranted given the issues and dollars at issue . . . .” Since the plaintiffs’ motion implicated facts about which the defendants wanted discovery under Rule 56(f), the Court gave the defendant until October 15, 2009 to complete limited additional discovery (and no more than five depositions).
The Court then took the unusual step and mandated that “the parties meet and confer in person with the senior Delaware lawyers involved in the representation present to work out a plan to finish discovery and brief the summary judgment motions.”
Prior to this order, the defendants had filed a Rule 56(f) application that according to the Court “suggest[ed] that a very limited number of players are involved in this unusual struggle, unusual in the sense that it remains difficult to determine why this case has not been resolved given that the underlying issues seem to involve less money in dispute than it will cost for the parties to litigate the case.” The Court went on to note that in the event of a dispute as to discovery and briefing schedules, a motion was to be filed along with “a certification that the senior Delaware lawyers involved believe in good faith that there was a genuine effort involving them directly to resolve the dispute short of bringing the matter to the court.”
The Court provided no background or explanation as to why it was requiring the involvement of senior Delaware lawyers in the discovery planning stage of the litigation. It is not at all unusual for the judges in the Court of Chancery (or any Delaware court for that matter) to expect that Delaware lawyers, when working with lawyers from other jurisdictions, will be actively involved in the substantive and procedural matters pending before the Delaware courts. That is exactly why the Delaware courts require lawyers from other jurisdictions to engage Delaware counsel. Nonetheless, it is unusual for such a requirement to be expressly articulated in an order.