Determining admitted facts can be one of the more difficult aspects of preparing a pretrial stipulation. Parties often propose factual statements that are advantageous to their position, while resisting facts that may favor their opponents. There is also a tendency to take a cautious approach and require an opponent to prove all facts in support of their case at trial. This approach, however, likely is contrary to counsel’s duty to litigate a matter “efficiently and effectively” and to “cooperate as officers of the court and not waste time on issues not legitimately in dispute,” as in Itron v. Consert, (Del. Ch. Jan. 15, 2015).
In Itron, the plaintiff challenged the defendant’s refusal to agree to proposed admitted facts drawn from its answer and discovery responses. On the plaintiff’s motion, the court found that facts the defendant previously admitted in its pleadings and discovery responses were admitted for purposes of the pretrial stipulation and trial. Additionally, the court sanctioned the defendant for failing to negotiate in good faith and ordered an in-person, on-the-record meet-and-confer to be attended by each party’s senior-most non-Delaware and Delaware attorneys.
