Delaware Supreme Court Changes Discovery Scheduling

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.

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Source: Law Technology News 
By: Edward M. McNally