In a recent letter opinion, Encite LLC v. Soni, et al., Chancellor Chandler set forth the proper procedure for counsel who seek to extend deadlines contained in a Court approved scheduling order.  In this case, counsel for the parties disagreed on whether an agreement had been reached among them to informally extend the expert deadline in the scheduling order.  Thus, plaintiff had to file a motion to extend the Court imposed expert deadline after the deadline had passed. 

The Court analyzed plaintiff’s request to extend the deadline under Court of Chancery Rule 6(b), which provides that if a motion to extend a deadline is made after the expiration of the prescribed period, the Court has discretion to grant the extension “where the failure to act was the result of excusable neglect.”  Applying this standard, the Court held that plaintiff failed to demonstrate excusable neglect.   As a result, plaintiff was precluded from introducing an expert report in the case.  Read Court’s decision on motion for re-argument here.  In so holding, the Court outlined some key pointers for practitioners who seek to extend court imposed deadlines via agreement among themselves.

First, a scheduling order is an order of the Court, and the only proper way for the parties to modify such order is to make a formal application to the Court.  Absent such a modification by the Court, the scheduling order remains in effect

Second, if the parties independently take the risk and agree among themselves (without Court approval) to an extension of a deadline in the scheduling order, then the following concepts should be observed:

  • make certain that the parties agree upon and stick to such deadline, i.e. make sure the “informal” agreement is in writing; 
  • make certain that such extension does not affect the trial date or other deadlines for Court submissions; and
  • most importantly, don’t get caught.  In other words, make certain that there is no issue concerning the deadline that has to be brought to the attention of the Court.

Because counsel typically reach agreements among themselves (without court approval)  to modify deadlines set forth in the Court of Chancery’s scheduling orders, this letter opinion should serve as a caution against such a practice.