On August 5, 2021, the Delaware Court of Chancery issued revised Guidelines for Persons Litigating in the Court of Chancery. According to the Court’s press release, the Guidelines “review the expectations for remote and courtroom hearings and trials and offer best practices for litigating cases in the Court of Chancery.” These Guidelines are a “must-read” for any litigator practicing before the Court of Chancery.
The Court of Chancery previously issued original Guidelines in 2012. While the new Guidelines retain much of the content of the original version, they also address a range of additional topics and provide various insight into the expectations of the Court. A brief summary of various updates can be found below:
- The revised Guidelines include a section titled “Expectations for Remote Hearings and Trials”, in light of the substantially increased use of such technology since the start of the Covid-19 pandemic. The Guidelines list four separate technology platforms used by the Court for remote hearings and trials: (i) conference call using a standard conference bridge; (ii) conference call using CourtSolutions; (iii) video conference using Zoom; and (iv) video conference hosted by CourtScribes. See Section B.
- The revised Guidelines clarify that parties should contact chambers to advise whether any party requests oral argument or whether the parties agree to submit the motion for decision without argument. See Section A(1)(b).
- The revised Guidelines include a section related to the use of a “Discovery Facilitator”, who may be appointed “to assist the parties in navigating the discovery process”. In contrast to a Discovery Master, a Discovery Facilitator does not have the authority to decide discovery disputes. The Court has historically appointed a Discovery Facilitator in cases exhibiting some or all of the following: highly complex facts, extensive discovery burden, an expedited schedule, difficult privilege questions, or a pattern of discovery disputes among counsel. See Section 7(h).
- Settlements should be promptly reported to the Court. See Section C(4).
- A section discussing prolonged lack of docket activity, which provides that the Court will request updates if there has been a prolonged period of inactivity. The Guidelines note that if there has not been any docket activity in six months, then it would be recommended to provide a status letter to the Court. See Section C(5)(f).
- A section discussing Rule 56 summary judgment motions, which states that parties may include in a scheduling order provisions requiring that parties seek leave before filing a motion for summary judgment. See Section C(6)(d).
- Clarification that the Court does not have access to Lexis. See Section C(8)(e). Therefore, if counsel cites to Lexis decisions, it is important to provide Lexis versions in the compendium.
In addition to the above-referenced additions, the new Guidelines include much of the content of the original Guidelines, including:
- hearing protocols and expectations of practitioners for in-court hearings;
- the prohibition of hand-held electronic devices of any kind in the courtroom, with the exception that a laptop may be used for hearing or trial purposes only;
- the requirement to consult about the use of technology needs prior to a hearing;
- recommended scheduling guidelines for expedited and non-expedited cases; and
- the fact that the concept of mere “local counsel”, whose role is limited to administrative or ministerial matters, has no place in the Court of Chancery. Rather, Delaware counsel are required to have an active role, especially in the discovery process, including in the collection, review and production of documents, and in the assertion of privilege.
Finally, similar to the original version, the revised Guidelines provide helpful links to various sample documents, including confidentiality stipulations, briefing and case scheduling stipulations, a sample document collection outline, and a sample quick-peek stipulation, among others. The sample documents can be found here.
The revised Guidelines are an important and necessary read for both Delaware and out-of-state counsel practicing before the Delaware Court of Chancery.