Alexandra D. Rogin, an Eckert Seamans associate, prepared this overview.
In a recent transcript ruling in the case styled Doctors Pathology Servs., PA v. Gerges, C.A. No. 11457-CB, transcript (Del. Ch. Feb, 15, 2017), Chancellor Bouchard provides additional guidance to attorneys seeking to file motions to compel discovery in the Delaware Court of Chancery. This ruling should be considered in conjunction with the Court’s opinion last month in the In Re Oxbow case covered here, which discussed key litigation rules in connection with granting a motion to compel discovery responses.
Background: The plaintiff brought suit against a former employee and the employee’s new medical practice for tortious interference and misappropriation of trade secrets. The plaintiff filed a motion to compel and for sanctions regarding the defendants’ discovery responses. Upon hearing oral argument, the Court detailed the proper content of a motion to compel and noted concerns over the failure to be upfront with document production.
Court’s Analysis: The Court explained that a discovery-related motion to compel should specifically identify the discovery requests at issue by number. In filing the motion with the Court, the moving party should also attach copies of the requests and the opposing party’s responses. It is not proper to simply attach the parties’ meet and confer correspondence and ask the Court to determine exactly what the problems are without additional explanation. Instead, the motion itself must identify the discovery requests at issue and explain the grounds for seeking the information.
Despite the Court’s concerns with the content of the motion at issue, Chancellor Bouchard did address the plaintiff’s complaint that documents expected to be in the defendants’ possession were produced by third parties, but not by the defendants. The Court explained that if true, the plaintiff’s allegations suggest that the defendants were not entirely forthcoming with document production. Withholding discovery until information is revealed by third parties would put the defendant “in a very bad spot when this litigation is concluded.”
If documents expected to be contained in the defendant’s files were not produced until third parties revealed the information, it would “bring into question fundamental issues of his credibility.” Thus, counsel was advised to inform the defendant of those potential consequences.
On a related note, the parties were required to be forthcoming with access to documents that had been produced with discovery responses. Passwords should be provided expeditiously to unlock encrypted documents, or those files should be produced in hardcopy format.
The Court also reminded the parties that they are required to abide by their confidentiality agreement in producing documents to potential experts. For many reasons, it would be a bad idea to ask the client to pass on confidential documents to an expert rather than exchange confidential discovery directly between counsel and the expert.
Conclusion: The Court explained that its “bottom line” was that the parties should be forthcoming and cooperative with document production. Without more specific details in the motion to compel, such as the exact deficiencies in enumerated replies, the Court could not provide additional guidance on issues related to interrogatory responses. Because the motion at issue was missing necessary content, although some concerns could be addressed on oral argument, sanctions were not warranted.