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Then if an issue still arises, try to work it out. I think the worst-case scenario is when a party brings a motion with a broad swath of claimed offenses, and then in op- position or at argument the accused party adopts their fallback position. I just spent a good deal of time reading briefs, trying to figure out what’s going on, and then it turns out I didn’t need to. The party that fell back ought to have done so in the first instance. And then it looks like the fall- back position was occasioned by the mo- tion in the first instance.
So if you think there’s a fallback po- sition that you’re going to take in oppo- sition to a motion, you might be better served to just take it in the first instance.
LEVINE: With your experience in Dis- trict Court, I imagine that Local Rule 7.1.1, requiring active Delaware counsel participation in discovery disputes, may also play a role in your thought process.
ZURN: I have imposed that requirement in cases where I thought communication was not working.
McCORMICK: Like Vice Chancellor Zurn, my advice is to attempt to resolve issues before filing motion papers, and to remind counsel that it should be clear by now that there are serious downsides to obstructing discovery or taking overly ag- gressive positions in discovery.
Before I joined the Bench, I was somewhat jaded by some strategies and practices I saw among my peers, and I’ve certainly carried a degree of cynicism to the bench. Sometimes people raise false alarms through motions for sure, and we’re aware of that. But there are seri- ous downsides to having a cynical judge jump in when you’re taking an unreason- able position.
So my advice to litigants is to take highly reasonable, defensible positions early on that aren’t obstructive, and that adhere to the spirit of discovery. The word “discovery” implies that we will need to discover all facts, sometimes dif- ficult facts, facts that will need to be dealt with. And if you adopt a reasonable posi- tion early on, by the time you get to mo- tion practice, it should be an easier road.
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