Summer 2018

Discovery Deadlines and the Importance of Court Approval

The Delaware Supreme Court has long valued the civility fostered within the Delaware Bar, and has encouraged Delaware attorneys to resolve discovery disputes without the need for court involvement.  While these aspects of Delaware practice remain alive and well, the issues facing civil attorneys in granting extensions to trial scheduling orders and the process of doing so, was raised in Christian v. Counseling Resource Associates, Inc.

In Christian, the Delaware Supreme Court determined that the Superior Court erred in precluding the testimony of Plaintiffs’ expert based on Plaintiffs’ failure to provide their expert reports in accordance with the applicable trial scheduling order.  Plaintiffs, the widow and children of the Decedent, brought suit against the Decedent’s health care providers for medical negligence resulting in the Decedent’s suicide.  The trial scheduling order required Plaintiffs’ expert report to be filed by December 3, 2010 in anticipation of an August 1, 2011 trial date.  As the case progressed, Plaintiffs were required to retain new counsel and, in November of 2010, the parties stipulated to extend the relevant expert deadlines.  Although Plaintiffs’ counsel wrote to the court in February of 2011 requesting a teleconference to discuss the discovery schedule, the court refused and informed the parties the trial date would not be altered.

After a number of delays, Plaintiffs’ experts were made available for depositions in late July 2011.  Shortly thereafter, Defendants filed a motion to preclude Plaintiffs’ expert testimony.  The trial court granted that motion and a related motion for summary judgment, which effectively barred Plaintiffs’ claims as a matter of law in light of the lack of expert testimony. On appeal, the Delaware Supreme Court found the trial court abused its discretion in refusing to hold a scheduling conference and in ultimately precluding Plaintiffs’ expert testimony.

In so holding, the Supreme Court reviewed six (6) factors that must be considered by the trial court in determining whether a case should be dismissed for the attorneys’ failure to abide by scheduling orders.  These factors include:

(1) the extent of the party’s personal responsibility; (2) the prejudice to the dversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal…; and (6) the meritoriousness of the claim or defense.

Although a review of the factors suggested dismissal was warranted, the Supreme Court reviewed the case in light of the trial court’s failure to hold a scheduling conference when requested by Plaintiffs’ counsel, and at a time where dismissal could have been avoided.

In reviewing the case before it, the Delaware Supreme Court advised litigants that “if they act without court approval, they do so at their own risk.”  The Court further iterated that, “[i]f one party misses a discovery deadline, opposing counsel will have two choices – resolve the matter informally or promptly notify the court.”  Should a party choose 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.  The Court counseled that parties may continue to agree to reasonable extension requests, but a proposed amended scheduling order for the trial court’s signature must be promptly filed.

In the post-Christian landscape, the determination of motions to dismiss based not on the merits, but on discovery violations are less likely to succeed.  Counsel can still agree to extensions of trial scheduling deadlines, but doing so requires the blessing of the court.

For more information about this article, please contact Noelle Torrice at 302.594.9780 or