Delaware Supreme Court Radically Changes Discovery Scheduling Practice

Authored by Edward M. McNally
This article was originally published in the Delaware Business Court Insider January 9, 2013

In four decisions issued on the same day, January 2, the Delaware Supreme Court has radically changed the common practice among Delaware lawyers concerning discovery schedules in Delaware litigation. Not only do these opinions change how lawyers will handle discovery in Delaware cases, but they also potentially will affect how Delaware's trial courts control their dockets. Much more formal, active case management will be the result. There are severe consequences for those lawyers who do not follow these new procedures.

First, some background helps explain the significance of these new decisions. For many years, the tradition among Delaware lawyers was to freely grant extensions of the deadlines in pretrial scheduling orders. This practice grew so informal that the courts were usually not asked to formally change the deadlines set out in any existing scheduling order, as long as the trial date was not changed. Predictably, the trial courts eventually came to feel abused by this practice when they were asked to change trial dates at the last minute because the litigants' attorneys had so changed the pretrial schedule that the case was not ready to be tried. As a result, the Superior Court began to dismiss cases where a plaintiff did not comply with a scheduling order through no fault of the defendant.

In 2010, the Delaware Supreme Court issued its ruling in Drejka v. Hitchens Tire Service, 15 A3d 1221 (Del. 2010), which limited when the trial courts might dismiss a case for failure to obey a scheduling order. The so-called "Drejka analysis" required the trial courts to focus on six factors that were to be balanced before a case could be dismissed. In general, those criteria disfavored dismissal as a remedy for delay absent severe prejudice to the defendant. However, the trial courts continued to dismiss cases even after Drejka by applying its analysis strictly to discourage tardy plaintiff conduct.

Apparently, the Delaware Supreme Court concluded that at least the Delaware Superior Court was still dismissing too many cases despite the Drejka decision. Thus, of the four decisions issued by the Delaware Supreme Court on January 2, three reversed dismissals by the Delaware Superior Court for discovery delays. The sole decision affirming a dismissal did so only when the pro se plaintiff persistently refused to follow the Superior Court judge's orders to answer discovery requests. Notably, all four of the Supreme Court decisions were written by Justice Carolyn Berger, who was joined by all the other Supreme Court justices in two of those decisions. Hence, there is no doubt the Supreme Court has spoken on this issue.

What, then, did the Supreme Court decide?

In general, the four decisions stand for the principle that a case should not be dismissed before trial because of a failure to obey a scheduling order when the offending conduct might be corrected by a lesser sanction than dismissal. Cases are to be decided on their merits whenever possible. Thus, in Keener v. Isken, No. 609, 2011, ___ A.3d __ (Del. 2013), the plaintiff failed to timely oppose a defense motion for summary judgment because the plaintiff's lawyer erroneously believed he had an extension of the response deadline. The Superior Court then granted summary judgment and declined to permit reconsideration pursuant to a motion that itself was filed a day late. The Supreme Court reversed, holding the plaintiff's lawyer's errors were excusable neglect and remanded the case for consideration of the summary judgment motion on the merits.

In Hill v. DuShuttle, No. 381, 2011, __A.3d __ (Del 2013), the Superior Court had dismissed a plaintiff's case for failure to produce expert evidence to support his medical malpractice claim. Again, the Supreme Court reversed. This time, the court held that counsel for the plaintiff "should be personally sanctioned" to force compliance with the court's scheduling order before his client's case should be dismissed. The Supreme Court reasoned that the client was not at fault and should be given at least one last chance to produce the needed expert report.

Finally, of the three decisions reversing trial court decisions, Christian v. Counseling Resource Associates, No. 460, 2011, __A.3d__ (Del. 213), is the most significant. There are two aspects of Christian that merit particular focus. In Christian, the defendants' counsel had repeatedly granted informal extensions of discovery deadlines to produce expert testimony supporting the plaintiffs' medical malpractice claim. Plaintiffs counsel did ask the trial court to change the scheduling order, but that court refused to even schedule a conference to consider that request. Eventually, the defendants moved to preclude the plaintiffs' proposed expert testimony on the basis that it was too late. The trial court agreed and then granted the defendants summary judgment. The Supreme Court reversed, holding that because both sides were at fault for the delay, the trial should instead be postponed to give the plaintiff more time and thereby permit a decision on the merits.

First, the Supreme Court held:

"To avoid this problem in the future, we now advise litigants that, if they act without court approval, they do so at their own risk. If one party misses a discovery deadline, opposing counsel will have two choices — 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. With that knowledge, the trial court will be able to take whatever steps are necessary to resolve the problem in a timely fashion.

"If the party chooses not to involve the court, that 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. It is entirely possible, under this scenario, that some vital discovery will not be produced until the day before trial. Still, the party prejudiced by the delay accepts that risk by failing to promptly alert the trial court when the first discovery deadline passes."

Note, in particular, the point that absent a motion to the court, "any late filings" may not be opposed. That may mean that even one failure to ask for court relief, even on a small issue, will bar relief from even later, more serious violations of a scheduling order. While it is doubtful Christian really intends to go that far, that is possible.

Second, Christian also seems to require the trial courts to more closely supervise pretrial practice. While expressing sympathy for busy trial courts, the Christian opinion also noted they "should resolve [scheduling] concerns." This point was made because the trial court had refused to hold a conference on the request to change the schedule. Hence, the Supreme Court suggested that was not correct.

Exactly what Christian and its similar decisions may mean for future practice is not altogether clear. More motion practice seems inevitable. But how far the trial court will go in enforcing the waiver-of-objection rule remains to be seen.

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