Opinion
Civil Action No. 2295-S.
July 12, 2004.
Bradley S. Eaby, Barros, McNamara, Malkiewicz Taylor, P.A., Dover, DE.
David R. Hackett, Griffin Hackett, P.A. Georgetown, DE.
Dear Counsel:
I have Mr. Hackett's July 7 letter to the Court asking me to "review this matter again and advise us as to whether a trial is necessary." Although Mr. Hackett's letter is not so denominated, I will treat it as a motion, under Chancery Rule 59(f), for reargument of my July 7 letter decision ordering a trial.
I deny the application to reconsider my July 7 decision. Nothing in Mr. Hackett's letter indicates that the Court has misapplied the law or misapprehended the facts. Inconsistencies between a sworn affidavit and email exhibits attached to the affidavit create factual issues inappropriate for resolution by summary judgment.
I also reject the request that the Court "indicate the factual issues" to be addressed at trial. Identifying the factual issues, or the disputed facts, as well as any legal issues, is the responsibility of counsel. Court of Chancery Rule 16 provides that "counsel shall confer in a good faith effort to stipulate to the contents of a pretrial order," which order shall set forth:
(1) A statement of the nature of the action;
(2) A statement of the facts which are admitted and required no proof;
(3) A statement of the issues of fact and of law which any party contends remain to be litigated;
(4) A statement of the relief sought by each party;
(5) Any amendments of the pleadings desired by any party, with a statement as to whether it is unopposed or objected to, and if objected to, the grounds therefor;
(6) A list of witnesses, including experts, who will be called by each party at the trial, and a statement of the testimony, if any, that will be adduced by transcript (or videotape) of depositions;
(7) A description of any evidentiary issues that will require resolution, which shall include a listing of any exhibits which are objected to and the nature of the evidentiary objection, and an undertaking by counsel (or by parties not represented by an attorney) that insofar as is feasible before the trial commences, all trial exhibits will be premarked and will indicate whether they may be admitted into evidence without objection; and
(8) An estimate by each party to the action of the number of trial days that will be required.
As soon as the pretrial stipulation is filed with the Court, a trial date will be set.
IT IS SO ORDERED.