The meaning of “reasonable effort” under D. Del. LR 7.1.1

Those who practice regularly in the District of Delaware are familiar with the “reasonable effort” requirement associated with nondispositive motions, including discovery and protective order disputes:

RULE 7.1.1. Statement Required to be Filed with Nondispositive Motions. Except for civil cases involving pro se parties or motions brought by nonparties, every nondispositive motion shall be accompanied by an averment of counsel for the moving party that a reasonable effort has been made to reach agreement with the opposing party on the matters set forth in the motion. Unless otherwise ordered, failure to so aver may result in dismissal of the motion. For purposes of this Rule, “a reasonable effort” must include oral communication that involves Delaware counsel for any moving party and Delaware counsel for any opposing party.

On January 23, 2025, in Civil Action No. 24-1023-CFC-EGT, Inari Medical, Inc. f/k/a Inceptus Newco1 Inc. v. Inquis Medical, Inc., the plaintiff filed a motion for a teleconference to resolve a discovery dispute, seeking to compel the production of documents. C.A. No. 24-1023-CFC-EGT D.I. 27. In this motion letter, plaintiff stated “[t]he following attorneys, including at least one Delaware Counsel and at least one Lead Counsel per party, participated in a verbal meet-and-confer (by telephone) on the following date: January 17, 12 minutes. The parties have also corresponded at length on that issue since September 17, 2024.” Id.

This is pretty standard fare in Delaware. Sometimes the parties make progress, the call takes 30 minutes, and no motion is filed. Other times, the parties will accommodate each other, but it’s still not enough. And in even other times, the moving party will send a draft of their motion before the meet-and-confer, and after a few minutes on the phone, it becomes clear that they have left no room to negotiate and will not budge from their position. Let’s not forget Daubert motions, where the parties have been talking around the subject for weeks, and the meet-and-confer is essentially a formality.

The motion was referred to Magistrate Judge Tennyson, who has, at public events, been vocal about expecting more than a single meet-and-confer. In an Oral Order, Her Honor denied the motion without prejudice, stating:

Notwithstanding the fact that the parties have “corresponded at length” about the discovery dispute raised in Plaintiff’s motion, the Court is unconvinced that a single meet-and-confer of twelve (12) minutes is sufficient to raise this dispute with the Court. Plaintiff may refile its motion if the parties are unable to reach a resolution after engaging in additional efforts to meet and confer in good faith (i.e., in person or by telephone).

C.A. No. 24-1023-CFC-EGT, Jan. 24, 2025. We can empathize. The Court relies on counsel to work through many of the smaller issues that arise during litigation, and it’s hard for the Court to know whether the parties have made a good faith effort to resolve an issue, or if there is actually an impasse requiring the court’s attention.

The take away here is that this judge will want to see more than an email exchange followed by a single meet-and-confer.

EPILOGUE: a second meet and confer was sufficient.