Phillips v. Firehouse Gallery LLC, C.A. No. 3644-VCL (Del. Ch. Aug. 9, 2010), read letter decision here.

It remains one of the more unpleasant aspects of a litigator’s life when "what should be a routine discovery matter" such as scheduling a deposition, becomes an impasse. Often the Court is upset at both parties for not working out the matter on their own, and takes the view of "a pox on both your houses"–even if it is only one party’s fault. In this decision the Court "took sides" and determined that the problem was the fault of one party.

Referring to Court of Chancery Rule 30(b)(1) and the case of La. Mun. Police Empl. Ret. Sys. v. Fertitta, 2009 WL 3806216, at * 1 (Del. Ch. Oct. 27, 2009), regarding the requirement of reasonable notice that needs to be provided in connection with taking a deposition, the Court recognized the practice of noticing a deposition with “nominal dates” in the nature of a placeholder which is later finalized for a mutually convenient time, date and place when the deposition will go forward. This short letter decision addressed the situation where the parties could not agree on the date of the deposition and the Court imposed a penalty on one of the lawyers who imposed a date unilaterally and in an inflexible manner. The Court ended the ruling with advise regarding the standards expected of Delaware lawyers, which includes: “Resisting importunate demands for aggressive litigation tactics, whether those demands originate externally with the client or internally from the belligerent emotions that inevitably cloud at times the judgment of those engaged in the adversary process.”