Henceforth, parties who ignore or extend scheduling deadlines without promptly consulting the trial court, will do so at their own risk.

 The Delaware Supreme Court in the recent case of Joann F. Christian et al. v. Counseling Resource Associates, Inc., et al., No. 460, 2011 (Del. Supr. Jan. 2, 2013), set forth practice guidelines to be followed by counsel when deciding to grant courtesy extensions to opposing counsel, outside of an existing scheduling order.  The Delaware Supreme Court held that the trial court abused its discretion when it precluded appellant’s expert report for failure to timely meet the expert discovery deadline.  The parties had dealt with discovery issues on their own through informal extensions, until the appellees abruptly filed a motion to preclude the appellants’ expert testimony.  Despite the fact that the appellants had written to the trial court requesting a teleconference to discuss the discovery schedule five months before the scheduled trial date, the trial court refused to schedule a conference and advised that the trial date would not be changed.  At the time that the appellees’ moved to preclude the expert report of the appellants, there was only 5 weeks remaining before trial.  Thus, because the trial court was unwilling to reschedule the trial date, dismissal was the only remaining choice.  The Delaware Supreme Court agreed that dismissal was the only logical choice by the trial court at that time, however, it found that the trial court should have addressed the appellant’s concerns over the discovery schedule five months earlier when there would have been time to avoid dismissal.  See also Encite v. Soni et al., C.A. No. 2476-CC (Del. Ch. Apr. 15, 2011) (precluding expert report and testimony where plaintiff failed to meet expert discovery deadline based on alleged informal extension by opposing counsel).

Not willing to eliminate the cherished value of civility among attorneys in Delaware, the Delaware Supreme Court set forth the following guidelines designed to afford greater predictability to litigants and the trial courts. 

  1. If one party misses a discovery deadline, opposing counsel may resolve the matter informally or promptly notify the court.  If counsel contacts the court, that contact can take the form of a motion to compel, a proposal to amend the scheduling order, or a request for a conference.  Any one of these approaches will alert the trial court to the fact that discovery is not proceeding smoothly thereby allowing the court to take necessary steps to resolve the matter in timely fashion.
  2. If the party chooses not to involve the court, the party will be deemed to have waived the right to contest any late filings by opposing counsel from that time forward.  There will be no motions to compel, motions for sanctions, motions to preclude evidence, or motions to continue the trial.  Under such a scenario, it is likely that vital discovery will not be produced until the day before trial, thus, the party prejudiced by the delay accepts that risk by failing to promptly alert the trial court when the discovery deadline passes.

The Delaware Supreme Court made clear that it was not eliminating the past practice of parties agreeing to reasonable extension requests.  However, they must promptly file a proposed amended scheduling order for the trial court’s signature.  By agreeing to the new scheduling order, both sides represent to the trial court that they can meet the new deadlines and be ready for trial.  If the trial court thinks that the new schedule is too ambitious, then a conference with the court should resolve those concerns.