The Delaware motion to compel: the Prothonotary will not accept it without a certification of dates and time spent

Most states require a movant to certify that they tried to resolve a discovery dispute. Delaware requires them to show their working.

The certification must detail "the dates, time spent, and method of communication" of the attempt, and the results. And the sanction for omitting it is not that the motion fails — it is that the motion is never filed at all. "No such motion shall be accepted by the Prothonotary."

The certification

Del. Super. Ct. Civ. R. 37(e)(1):

No motion shall be filed pursuant to Rule 26(c), 26(d) or 37 of the Superior Court Civil Rules, and no such motion shall be accepted by the Prothonotary, unless such motion shall include a certification by the moving party detailing the dates, time spent, and method of communication in attempting to reach agreement on the subject of the motion with the other party or parties and the results, if any, of such communication, provided that the certification shall not be required for motions filed pursuant to Rule 37(d) of the Superior Court Civil Rules.

Two things are worth drawing out.

A generic recital will not do. "Counsel have conferred and been unable to resolve this dispute" contains none of the four required elements. The rule asks for a record of the effort, not an assertion that one was made.

Rule 37(d) motions need no certification. Those are the total-failure cases — a party who did not appear at their own deposition, did not serve answers to interrogatories, or did not respond in writing to a document request. Where there has been no response at all, Delaware does not make you demonstrate an attempt to confer first.

Everything else about the motion is prescribed too

Rule 37(e) then fixes the shape of the whole exchange.

The response rule is the sharp one. Rule 37(e)(3) provides that a party wishing to oppose "shall file a responsive pleading which shall not exceed 6 pages", and that "Failure to file a responsive pleading shall constitute a waiver of any opposition to the motion."

Silence is not a neutral choice. Opposition is waived, and since Rule 37(e)(4) allows no written reply and 37(e)(5) allows no further briefing, the papers close four days before the hearing with whatever is on file.

Both sides must therefore front-load. The rule says so twice: each filing "shall contain all authorities and facts" the party wants before the Court.

Not appearing costs $100 and your filing privileges

Rule 37(e)(8):

If the attorney for the moving party or an attorney for a party opposing the motion filed pursuant to Rule 26 (c), 26(d) or 37 of the Superior Court Civil Rules shall fail to appear at the oral argument on said motion, the motion shall be summarily denied or granted as the case may be and an attorney's fee in an amount not less than $100 shall be assessed against the nonappearing attorney. The sum shall be paid to the Prothonotary and the Prothonotary shall promptly forward it to the appearing party. The Prothonotary shall not accept further filings of any type in the action from the attorney who did not appear until the attorney's fee is paid.

Three consequences, and they land on the attorney rather than the client.

The motion is decided against the absentee — "summarily denied or granted as the case may be".

A fee of not less than $100 is assessed personally, paid to the Prothonotary and forwarded to the party who did turn up.

Filing stops. The Prothonotary "shall not accept further filings of any type in the action" from that attorney until the fee is paid.

Which court hears it

Rule 37(a)(1) splits the question by who the target is:

Appropriate court. An application for an order to a party may be made to the Court, or, alternatively, on matters relating to a deposition taken outside the State of Delaware, to a court in the state where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to a court in the state where the deposition is being taken.

For a non-party the word is "shall", so where the deposition is taken outside Delaware the Superior Court is not the forum. Louisiana routes every discovery dispute, non-parties included, to a single court; Delaware does the opposite.

Fees run both ways

Rule 37(a)(4) makes an award the default in either direction.

If the motion is granted — or the discovery is provided after the motion was filed — the Court "shall", after an opportunity to be heard, require the party, the deponent, or the attorney advising the conduct, to pay the movant's reasonable expenses including fees, unless the opposition was "substantially justified" or other circumstances make an award unjust.

If the motion is denied, the same obligation runs the other way, against the movant or the attorney advising the motion, on the same two exceptions.

If it is granted in part, the Court "may apportion the reasonable expenses".

So producing the documents after the motion is filed does not avoid the fee. The trigger is that the motion was necessary, not that it was contested.

Rule 37(a)(3) closes an obvious gap: "For purposes of this subdivision an evasive or incomplete answer or response is to be treated as a failure to answer or respond."

Disobeying an order

Rule 37(b)(2) lists what follows a failure to obey a discovery order — facts taken as established, claims or defenses barred, evidence excluded, pleadings struck, proceedings stayed, the action dismissed, or judgment by default entered. Contempt is available for any order except one to submit to a physical or mental examination.

Lost electronic evidence: recklessness is enough

Rule 37(b)(2)(F) is where Delaware parts company with the federal rule:

only upon finding that the party acted recklessly or with the intent to deprive another party of the information's use in the litigation, may, among other things: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.

The federal rule reserves those three sanctions for a party that acted with intent. Delaware adds "recklessly" as an independent alternative.

That is a materially lower threshold. A party who never imposed a litigation hold, or who left an auto-deletion policy running after notice, may be exposed to an adverse-inference instruction in Delaware on facts that would not support one federally.

The lesser tier is unchanged: on a finding of prejudice alone, the Court "may order measures no greater than necessary to cure the prejudice". The trigger for the whole provision is ESI lost because a party "failed to take reasonable steps to preserve it" in "the reasonable anticipation of or actual notice of imminent litigation", where it "cannot be restored or replaced through additional discovery".

Nevada, by contrast, requires intent before its worst spoliation sanctions. See the Nevada motion to compel.

Two more expense provisions

Rule 37(c) — refusing to admit. Where a party will not admit a document's genuineness or a matter's truth under Rule 36, and the requesting party then proves it, the Court "shall make the order" for expenses unless one of four things is shown: the request was held objectionable, the admission was of no substantial importance, there was reasonable ground to believe the party might prevail, or there was other good reason.

Rule 37(f) — the discovery plan. A party or attorney who "fails to participate in good faith in the framing of a discovery plan by agreement as required by Rule 26(f)" may, after opportunity for hearing, be required to pay the other side's reasonable expenses and fees caused by the failure.

Where this connects

For the case itself, see the Delaware motion to dismiss and Delaware summary judgment, where cross motions are treated as a stipulation to decide the case.

How Delaware compares

A short checklist

1. Draft the certification first. Dates, time spent, method, results — all four, or it is not filed.
2. Check whether Rule 37(d) applies. A total non-response needs no certification.
3. File at least 10 days before the noticed date, within 6 pages.
4. If you are opposing, respond at least 4 days out. Silence waives opposition outright.
5. Put everything in that one filing. There is no reply and no further briefing.
6. Appear. Non-appearance decides the motion and costs the attorney at least $100.
7. For a non-party deposed out of state, apply to that state's court, not to the Superior Court.
8. On ESI, remember recklessness is enough in Delaware for the severe sanctions.

Where these rules live

• Del. Super. Ct. Civ. R. 37 — Failure to make discovery: Sanctions
• Del. Super. Ct. Civ. R. 26 — General provisions governing discovery
• Del. Super. Ct. Civ. R. 56 — Summary judgment

This page explains what the rules say. It isn't legal advice.