Delaware Civil Discovery Rules and Procedures

Delaware's discovery rules, found in Del. Super. Ct. Civ. R. 26-37, provide a comprehensive framework for obtaining information and documents in civil litigation. While Delaware's rules track closely with the Federal Rules of Civil Procedure, several important distinctions and stricter limitations apply that practitioners must understand to avoid costly mistakes.

Mandatory Initial Disclosures

Delaware does require mandatory initial disclosures, but with significant limitations compared to federal practice. Under Del. Super. Ct. Civ. R. 26(a)(1), parties must disclose without awaiting a discovery request:

The names, addresses, and telephone numbers of individuals likely to have discoverable information

A description of documents, electronically stored information (ESI), and tangible things in the party's possession, custody, or control that the disclosing party may use to support its claims or defenses

A computation of damages with reasonable particularity and copies of documents supporting the computation

Insurance agreements that may satisfy any judgment

However, Delaware permits parties to opt out of initial disclosures by written stipulation or by court order. Many Delaware practitioners routinely stipulate to forgo these disclosures unless a party insists. When disclosures are required, they must be made at least 14 days before the parties' Rule 26(f) conference, unless the court orders otherwise.

The initial disclosure obligation applies to information the disclosing party knows or reasonably should know, not information that would require investigation. Delaware courts interpret this narrowly — you cannot rely on information you haven't yet reviewed.

Interrogatories

Delaware imposes strict numerical limits on interrogatories under Del. Super. Ct. Civ. R. 33:

25 interrogatories maximum per party, including all discrete subparts

Subparts that seek separate information are counted individually — this is critical

An interrogatory with five subparts counts as five interrogatories toward the 25-question limit

Time to respond: Parties must answer within 21 days of service, or 30 days if served with the summons and complaint. Delaware does not automatically grant extensions; requests for extensions require opposing party consent or court order.

Format requirements:

Interrogatories must be numbered consecutively

Each interrogatory must be separate and distinct

Compound or conjunctive interrogatories violating the specificity requirement may be objected to as improper

Objections and limitations:

Objections must be stated with specificity under Del. Super. Ct. Civ. R. 33(a)(4)

General objections ("objection to the extent..." language) without explanation are disfavored

Objections must comply with Del. Super. Ct. Civ. R. 26(b)(5) regarding privilege

A party may supplement answers under Del. Super. Ct. Civ. R. 26(e) as required by Delaware case law

Interrogatories seeking opinion work product or attorney mental impressions are objectionable. Requests for legal conclusions are also objectionable, though factual interrogatories that happen to use legal terminology may be permissible if they seek factual information.

Requests for Production of Documents

Under Del. Super. Ct. Civ. R. 34, requests for production define the scope and manner of document discovery.

Scope and content:

Requests must describe items with "reasonable particularity" — vague requests are objectionable

Requests can target documents in a party's "possession, custody, or control"

ESI is explicitly included and must be produced in a usable format

Time to respond: 21 days of service, or 30 days if served with the summons and complaint. Extensions require consent or court order.

Format and ESI considerations:
Delaware does not have a detailed ESI protocol, but Del. Super. Ct. Civ. R. 34(b) requires that the responding party produce ESI in the form requested or, if not specified, in the form in which it is ordinarily maintained or in a form that is reasonably usable. Key considerations include:

Metadata preservation is required from the outset; failure to preserve constitutes spoliation

Parties should agree on native format versus PDF for email and documents before disputes arise

Search terms and filters are negotiable; blanket searches may be disproportionate

Costs of ESI production can shift to the requesting party if production is unduly burdensome under Del. Super. Ct. Civ. R. 26(b)(2)(B)

Delaware courts increasingly recognize that proportionality under Del. Super. Ct. Civ. R. 26(b)(1) applies to ESI discovery. Requests for all metadata, multiple backup systems, or deleted files must be justified by relevance and importance.

Objections: Objections to requests for production must be stated with specificity. Boilerplate objections are disfavored and may result in sanctions.

Requests for Admission

Del. Super. Ct. Civ. R. 36 governs requests for admission:

No numerical limit on requests for admission in Delaware

21 days to respond, or 30 days if served with the summons and complaint

A party may request an extension by written stipulation

Deemed admissions: This is critical in Delaware practice. Under Del. Super. Ct. Civ. R. 36(a), if a party fails to respond to a request for admission within 21 days, the requested matter is automatically deemed admitted unless:

The requesting party fails to serve the request properly, or

The court grants relief under Del. Super. Ct. Civ. R. 36(b) for good cause

Deemed admissions are difficult to reverse. Delaware courts permit withdrawal of deemed admissions only upon a showing of "good cause," which typically requires evidence that failure to respond was inadvertent and that the admissions would not cause undue prejudice or surprise to the opposing party. Many practitioners deem admissions a trial-winning tactic, and failure to timely respond can be catastrophic.

Scope: Requests for admission can seek admission of facts, opinions, conclusions, applications of law to fact, or the genuineness of documents. Requests must not seek legal conclusions unrelated to the case or information that is primarily within the knowledge of the requesting party.

Depositions

Delaware's deposition rules are found in Del. Super. Ct. Civ. R. 30 and 31.

Number and duration:

10 depositions per side maximum without court order or stipulation under Del. Super. Ct. Civ. R. 30(a)(2)(A)

Each deposition is limited to 7 hours unless extended by stipulation or court order

Multiple depositions on the same day count separately toward the limit

This is significantly more restrictive than federal practice (which allows 10 depositions with no hour limit per deposition). Delaware practitioners must plan deposition strategy carefully.

Notice and who can be deposed:

14 days' notice minimum required under Del. Super. Ct. Civ. R. 30(b)(1)

Any party may be deposed

Any non-party with knowledge may be deposed (a subpoena is required for non-parties under Del. Super. Ct. Civ. R. 30(b)(6))

Experts can be deposed after disclosure under Del. Super. Ct. Civ. R. 26(a)(3)

Deposition of organizational parties:
Under Del. Super. Ct. Civ. R. 30(b)(6), a party can depose a corporation, partnership, association, or other organizational entity by requiring it to designate representatives to testify about specified matters. The organization must prepare these representatives even if no single person has complete knowledge.

Use at trial:
Depositions can be used at trial under Del. Super. Ct. Civ. R. 32 for:

Impeachment of a witness's trial testimony

Use in lieu of live testimony if the witness is unavailable

Use against an adverse party

Recording and transcripts:
The party taking the deposition bears the cost of the transcript. Parties may record by audio, video, or both by stipulation or court order.

Physical and Mental Examinations

Del. Super. Ct. Civ. R. 35 permits physical and mental examinations only when:

The condition is in controversy (explicit requirement)

Good cause is shown for the examination

The court orders the examination

Unlike federal practice, Delaware requires explicit court authorization; mere stipulation may not be sufficient. The party seeking the examination must file a motion demonstrating that the party's physical or mental condition is actually at issue in the case.

Notice and scope:

The examined party has a right to notice and to be present

The examiner must provide a written report of findings, diagnoses, and conclusions

The examined party has a right to obtain the report and to select an independent examiner

Subpoenas for Non-Parties

Del. Super. Ct. Civ. R. 45 governs subpoenas for non-party discovery.

Issuance and service:

Subpoenas are issued by the court clerk and signed by an attorney

Reasonable notice is required (typically interpreted as at least 14 days)

Subpoenas must include a return date and must be served personally on the non-party or an agent authorized to accept service

Scope and compliance:

Subpoenas for documents (Rule 45(d)(1)(C)) are common

Subpoenas for deposition testimony from non-parties require compliance with Rule 30 notice requirements

Non-parties must comply or face contempt of court sanctions

A non-party may move to quash under Del. Super. Ct. Civ. R. 45(c)(3) if the subpoena is unreasonable, oppressive, or seeks privileged information

Geographic limits:
Non-parties subpoenaed to testify at a deposition must be within 100 miles of their residence or place of work, or they can be required to travel to another state only if they are a party to the litigation under Del. Super. Ct. Civ. R. 45(d)(2)(B).

Expert Discovery

Del. Super. Ct. Civ. R. 26(a)(3) requires parties to disclose experts with a detailed report.

Disclosure timing and content:

Experts must be disclosed at least 90 days before trial unless modified by court order

The disclosure must include an expert report containing:

- A detailed statement of the expert's opinions and basis
- The facts or data considered
- Any assumptions underlying the opinions
- The expert's qualifications and a list of prior cases in which the expert has testified
- A statement of the expert's compensation
- A list of publications authored by the expert
- A statement that the expert has reviewed the disclosure requirements and agrees to comply

Rebuttal experts:

Rebuttal experts must be disclosed 30 days after the opposing party's expert disclosure

Rebuttal experts also require a detailed report

Expert depositions:

Experts can be deposed after disclosure

Expert depositions are not included in the 10-deposition limit under Del. Super. Ct. Civ. R. 30(a)(2)(B), but they do count toward the 7-hour duration limit per deposition

The parties must cooperate on expert deposition scheduling

Scope of Discovery

Del. Super. Ct. Civ. R. 26(b)(1) defines discoverable information:

Parties may obtain discovery regarding any matter not privileged that is relevant to any claim or defense of a party. The information sought does not have to be admissible at trial if the discovery request is reasonably calculated to lead to the discovery of admissible evidence.

Proportionality limitations:
Delaware explicitly incorporates proportionality under Del. Super. Ct. Civ. R. 26(b)(1), requiring that the discovery burden not be excessive compared to:

The importance of the issues at stake

The amount in controversy

The parties' relative access to information

The parties' resources

This proportionality standard is increasingly invoked in Delaware to limit ESI discovery, expert discovery, and requests for production of large document sets.

Limitations on discovery:

Information protected by attorney-client privilege is not discoverable

Work product protected under Del. Super. Ct. Civ. R. 26(b)(3) is not discoverable except in narrow circumstances

Opinions of consulting experts not designated to testify are protected under Del. Super. Ct. Civ. R. 26(b)(3)(A)(ii)

Privileges and Work Product

Attorney-client privilege:
Delaware recognizes the attorney-client privilege as defined in the Delaware Rules of Evidence (Del. R. Evid. 502). Communications between an attorney and client made in confidence for the purpose of obtaining legal advice are privileged. The privilege covers communications but not the underlying facts.

Work product doctrine:
Del. Super. Ct. Civ. R. 26(b)(3) protects "work product" — documents and materials prepared in anticipation of litigation by a party or its representative (attorney, agent, consultant). Work product is not discoverable except:

Upon a showing of substantial need and inability without undue hardship to obtain the materials by other means

Mental impressions, conclusions, opinions, and legal theories remain protected even upon a showing of substantial need

Privilege logs:
When a party withholds information based on privilege or work product, a privilege log must be provided under Del. Super. Ct. Civ. R. 26(b)(5). The log must identify each withheld item by:

Date

Author and recipients

General subject matter

Privilege or protection claimed

Inadequate privilege logs are a common source of disputes in Delaware discovery practice.

Meet and Confer Requirements

Del. Super. Ct. Civ. R. 26(f) requires a Rule 26(f) conference before certain discovery disputes arise:

Parties must conduct a conference without court involvement at least 21 days before a scheduling conference or the court's deadline for filing a discovery motion

The parties must discuss the nature and scope of claims and defenses, and make or arrange for disclosures

The parties must develop a discovery plan

More importantly, before filing a motion to compel, Delaware courts require a showing of good faith effort to resolve the dispute informally. Failure to attempt resolution before filing can result in denial of the motion or attorney's fees sanctions regardless of merit.

Discovery Cutoffs and Timing

Del. Super. Ct. Civ. R. 16(b) requires a scheduling order that typically includes a discovery cutoff date. Standard Delaware practice:

Discovery typically closes 30-45 days before trial (subject to the scheduling order)

Expert discovery typically closes 90 days before trial

The Rule 26(f) conference should occur within 30 days of the defendant's appearance in the case

The court retains discretion to modify these deadlines. Failure to complete discovery by the cutoff date can result in preclusion of evidence or expert testimony.

Protective Orders

Del. Super. Ct. Civ. R. 26(c) permits a party to seek a protective order preventing or limiting discovery on grounds that:

The discovery sought is unreasonable or oppressive

The information is confidential or privileged

Good cause exists to protect the information

Procedure:

A motion for protective order must be accompanied by a certification that the moving party has attempted to resolve the dispute without court intervention (the meet-and-confer requirement)

The court may order that discovery be conducted only on specified terms and conditions

Confidentiality designations are common, restricting use of documents to attorneys and designated persons

Delaware courts are willing to enter protective orders to protect trade secrets, proprietary information, and sensitive personal information, but the burden is on the party seeking protection to demonstrate genuine harm.

Motions to Compel

Del. Super. Ct. Civ. R. 37(a) provides the procedure for compelling discovery:

Prerequisites:

The moving party must have attempted in good faith to obtain the disclosure or discovery response without court involvement

A motion to compel must be certified as compliant with the meet-and-confer requirement

If a party fails to meet and confer, the court may deny the motion without addressing the merits

Procedure:

The motion must identify specifically which discovery requests are not being answered

The motion must set forth the reasons for the motion

A proposed order compelling the discovery should be submitted

Burden and analysis:

The moving party bears the initial burden of demonstrating non-compliance

The responding party must then justify the objection with specificity

Delaware courts disfavor blanket objections and require parties to address