Court Demands Specificity in Motions to Compel Discovery

5 Feb 2018

Our blog explains recent casesIn Doctors Pathology Servs., PA v. Gerges, C.A. No 11457-CB (Del. Ch. Feb. 15, 2017), the  court demanded that parties be specific as to which discovery requests were problematic, including providing specific numbers of discovery requests listed in the Motion to Compel.

Here, Plaintiff had sued a former employee and the employee’s new medical practice for tortious interference and misappropriation of trade secrets. Plaintiff filed a motion to compel and for sanctions regarding the defendants’ discovery responses.

The Court stated that a Motion to Compel should specifically identify the discovery requests at issue by number. When the Motion to Compel is filed with the Court, the moving party (Plaintiff) should attach copies of the discovery requests and the opposing party’s responses. The Court said that it was not acceptable to just attach the earlier correspondence and expect the Court to examine the attachments to determine which requests were in question. The Court said the party must identify exactly which discovery requests at issue and explain the grounds for the challenges.

The Plaintiff in this case was frustrated by Defendant’s non-production of documents.  Plaintiff claimed Defendant produced emails with no attachments, and then documents that were encrypted and password-protected. Plaintiff stated it was as if Defendant had not produced anything at all, preventing Plaintiff to assess the documents at all. Defendant rebutted the claims, saying Plaintiff had not notified them of the email attachment discrepancies, and that Defendant would have immediately produced the documents requested had there been notice. Defendant said they were not withholding documents.

The Court told Defendant to produce the password needed to access the encrypted emails do Plaintiff could examine them, and to do it within 48 hours. The Court also told the parties to confer again on the specific discovery requests that were in dispute, and to come to an accord within 48 hours. The Plaintiffs also moved for sanctions based on Defendant’s lack of production. The Court denied the motion saying the motion was not filed correctly and it was ‘ridiculous’ that the motions were so non-specific, requiring the Court to ‘figure out’ which discovery requests were at issue. The Court left open the question of potential litigation misconduct.