Both the Delaware Court of Chancery and the Delaware Superior Court emphasize that discovery must proceed in a timely manner in accordance with the scheduling order entered by the court. Litigants who delay in bringing their discovery disputes before the court may find themselves without a remedy. Similarly, the courts are showing little tolerance for a failure to adhere to deadlines or to communicate effectively with opposing counsel or the court. This review focuses on the pitfalls that busy litigators can avoid.

Motions to Compel Must Be Brought in a Timely Manner

Recent case law continues to highlight the importance of bringing discovery misconduct to the attention of the court through a motion to compel. This practice is in keeping with the Delaware Supreme Court’s guidance in Christian v. Counseling Resource Associates, 60 A.3d 1083 (Del. 2013). In that case, the Supreme Court cautioned that, “If one party misses a discovery deadline, opposing counsel will have two choices—resolve the matter informally or promptly notify the court.” Further, “If the party chooses to not involve the court, that party will be deemed to have waived the right to contest any late filings by opposing counsel from that time forward.”

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