Delaware Motion to Compel

Introduction

Key Things to Know

1. 1

   What you file in the Superior Court is a Rule 37(a)(2) application for an order compelling an answer, a designation or an inspection. It reaches a deponent who will not answer a question under Rule 30 or 31, an entity that will not make a Rule 30(b)(6) or 31(a) designation, a party that will not answer an interrogatory under Rule 33, and a party that will not produce documents or ESI or permit inspection under Rule 34. Rule 37(a)(3) adds that an evasive or incomplete answer or response is to be treated as a failure to answer or respond. Rule 36 requests for admission are not on that list, and the omission is deliberate.

2. 2

   Rule 37(e)(1) puts Delaware's pre-filing requirement at the filing counter rather than in a fee ruling. No motion under Rule 26(c), 26(d) or 37 may be filed, and no such motion shall be accepted by the Prothonotary, unless the motion includes 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. The rule states one exception: the certification is not required for a motion filed under Rule 37(d), which is the track for a party who served nothing at all.

3. 3

   The six-page figure is the number most sources get wrong. Rule 37(e)(2) requires the motion to be filed at least 10 days before the date noticed for its presentation and caps it at six pages of letter size paper, and the opposition is due at least four days before and is capped the same way. The President Judge raised both figures from four to six effective 20 March 2026. The judiciary's own consolidated rulebook has not caught up and still prints four, so check the amendment order rather than the compilation before you size the brief.

4. 4

   There is no written reply in Delaware, which changes how the motion has to be drafted. Rule 37(e)(2) requires it to contain all authorities and facts which the moving party desires to bring to the attention of the Court. Rule 37(e)(4) then provides that there shall be no written reply to the responsive pleading, and 37(e)(5) bars further briefing except on an order for good cause shown at oral argument. Rule 78(b) prescribes the typography: double spaced, Times New Roman 14-point, two spaces between sentences, case names italicized or underlined, footnotes single spaced in Times New Roman 12-point.

5. 5

   The motion is argued on a county motion day and usually decided there. Rule 78(a) sets them: in New Castle County motions not assigned to a Judge are presented on Fridays at 1:30 p.m., in Kent County on Fridays at 11 a.m. with Commissioner motions on Thursdays at 2:00 p.m., and in Sussex County on the first and third Fridays of each month at 11:00 a.m. Rule 37(e)(6) limits oral argument to no more than 15 minutes in total, divided equally, and 37(e)(7) says that whenever possible the Court shall decide the motion at the argument. Rule 37(e)(3) makes failure to file a responsive pleading a waiver of any opposition.

6. 6

   Read Rule 37(a)(4) before deciding whether to file, because both limbs are mandatory. Under 37(a)(4)(A), if the motion is granted or if the discovery is provided after the motion was filed, the Court shall require the party or deponent whose conduct necessitated the motion, or the party or attorney advising such conduct, or both, to pay the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the opposition was substantially justified or other circumstances make an award unjust. Under 37(a)(4)(B) a denied motion means the Court shall require the moving party or the attorney advising the motion to pay the other side's expenses on the same two exceptions. Separately, Rule 37(e)(8) assesses a fee of not less than $100 against an attorney who fails to appear at the argument, and the Prothonotary accepts no further filings in the action from that attorney until it is paid.

7. 7

   Count the response period first, and note that Delaware caps nothing by number. Rules 33(b)(3), 34(b) and 36(a) each give 30 days from service of the request, except that a defendant may answer within 45 days after service of the summons and complaint. The rules set no limit on how many interrogatories, requests for production or requests for admission may be served. Rule 33(b)(1) requires each interrogatory to be restated as numbered and answered separately and fully in writing under oath, Rule 33(a) requires the interrogatories as served to leave reasonable blank space after each question, and Rule 33(b)(4) provides that any ground for an objection not stated in a timely objection is waived unless the Court excuses the failure for good cause shown.

Delaware Requirements for Motion to Compel

• The Subdivision You Are Moving Under, Chosen by What Came Back

  Settle this before drafting. A response that arrived and is evasive, incomplete or objected to goes to Rule 37(a)(2), with Rule 37(a)(3) providing that an evasive or incomplete answer or response is to be treated as a failure to answer or respond. A party who served nothing at all goes to Rule 37(d) instead, and that matters beyond the citation: Rule 37(e)(1) and CCLD Rule 144 both exempt a Rule 37(d) motion from the certification requirement. Requests for admission are not in Rule 37(a)(2) at all and run through Rule 36(a).

• The Rule 37(e)(1) Certification, Without Which the Filing Is Not Accepted

  Rule 37(e)(1) provides that no motion under Rule 26(c), 26(d) or 37 shall be filed, and no such motion shall be accepted by the Prothonotary, unless it includes 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. Record each of those four items specifically. In a Complex Commercial Litigation Division case, CCLD Rule 144 adds that failure to so certify may result in dismissal of the motion and that the effort must include oral communication involving Delaware counsel for the moving party and Delaware counsel for the opposing party.

• The Noticed Presentation Date, and the Ten Days Before It

  Delaware runs this clock forward rather than backward. Rule 37(e)(2) requires the motion to be filed at least 10 days before the date noticed for its presentation to the Court, and Rule 37(e)(3) gives the other side until at least four days before that date to file a responsive pleading. Rule 78(a) fixes the presentation days by county: New Castle Fridays at 1:30 p.m. for motions not assigned to a Judge, Kent Fridays at 11 a.m. with Commissioner motions Thursdays at 2:00 p.m., and Sussex the first and third Fridays of each month at 11:00 a.m. In a CCLD case, CCLD Rule 145(c) sets a default of seven days for the opposition and five for the reply.

• Six Pages, Not Four, and the Typography Rule 78(b) Prescribes

  Rule 37(e)(2) caps the motion at six pages of letter size paper and requires it to contain all authorities and facts which the moving party desires to bring to the attention of the Court. The figure was amended from four to six effective 20 March 2026 and the judiciary's consolidated rulebook still prints four, so size the brief from the amendment order. Rule 78(b) requires all motions and responses to be double spaced and typeset in Times New Roman 14-point type with two spaces between sentences, case names italicized or underlined, and footnotes single spaced in Times New Roman 12-point type. A CCLD motion is capped in words instead under CCLD Rule 145(b)(2).

• Every Authority and Fact, Because There Is No Written Reply

  Rule 37(e)(4) provides that there shall be no written reply to the responsive pleading, and Rule 37(e)(5) bars further briefing except on an order of the Court for good cause shown at oral argument. Rule 37(e)(6) then limits oral argument to no more than 15 minutes in total, divided equally, and Rule 37(e)(7) says that whenever possible the Court shall decide the motion at the argument. Put the whole case in the six pages. Note the other side of the same provision: Rule 37(e)(3) makes failure to file a responsive pleading a waiver of any opposition to the motion.

• Each Request and Each Response, Set Out Item by Item

  Delaware prescribes no separate statement as its own filed document, so the itemization lives in the motion. Build it from the form duties the rules put on the response: Rule 33(b)(1) requires each interrogatory to be restated as numbered and answered separately and fully in writing under oath, Rule 36(a) requires each request for admission to be restated as numbered and answered separately and fully in writing, Rule 34(b) requires an objection to state whether the responding party is withholding or intends to withhold responsive materials on that basis, and Rule 33(b)(4) requires all grounds for an objection to be stated with specificity and waives any ground not stated in a timely objection unless the Court excuses the failure for good cause shown.

• The Expense Request Under Rule 37(a)(4), and Your Own Exposure Under It

  Rule 37(a)(4)(A) provides that if the motion is granted, or if the disclosure or requested discovery is provided after the motion was filed, the Court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the opposition was substantially justified or other circumstances make an award unjust. Rule 37(a)(4)(B) is the mirror image and equally mandatory against a losing movant or the attorney advising the motion. Rule 37(e)(8) separately assesses a fee of not less than $100 against an attorney who does not appear at the argument, with a bar on further filings until it is paid.

• Proof the Thirty or Forty Five Day Response Period Had Run

  State the computation. Rules 33(b)(3), 34(b) and 36(a) each give 30 days from service of the request, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint upon that defendant, and the Court may allow a shorter or longer time. Rule 29 lets the parties stipulate to discovery procedure. A motion brought before the period has run is premature, and with both limbs of Rule 37(a)(4) mandatory that is an expensive error. Delaware sets no numerical cap on how many interrogatories, requests for production or requests for admission may be served, so a complaint about volume is argued under Rule 26, not under a number.