Confusion over a deadline can lead to missed deadlines. But when parties draft the initial scheduling order in an action, there are at least two common ways that ambiguities may arise, both of which seem easy to eliminate.
“# Days After the Scheduling Conference” is Ambiguous If No Scheduling Conference Takes Place
The first common source of ambiguity in recent scheduling orders is dates scheduled to occur a set number of days after the scheduling conference.
Why is that a problem? Well, we have noticed a growing trend in which the Court issues Scheduling Orders without a Scheduling Conference. Instead, the Court may adjust any proposed dates by crossing them out on the proposed order, writing in the Court’s preferred date(s), and issuing the adjusted order on the docket. Thus, the parties may have a date set “30 days after the Scheduling Conference”—but there was no scheduling conference.
When that happens, the correct result is unclear. Should the deadline be interpreted to mean 30 days from when the Rule 16 Conference was scheduled to occur? Or 30 days from the Scheduling Order? Or should the parties stipulate to a brand-new date entirely?
Regardless of how the parties handle the issue, counsel on both sides are likely to have to spend precious time on it. Even worse, if counsel do not identify the ambiguity before the deadline hits, the parties may end up involving the Court in what is really an unnecessary dispute over whether a party missed a deadline.
Dates Certain May be Ambiguous Before a Scheduling Order Issues
The second common source of ambiguity in recent scheduling orders is dates certain that occur before the scheduling order issues.
Most form Scheduling Orders prompt litigants to insert dates certain. There’s nothing less ambiguous than a date certain, right?
Well, it depends. It’s true that dates certain are the best choice for deadlines later in the case. They are certainly more readable than creating series of math problems by stacking multiple layers of “[insert] days after [insert prior deadline]” in succession across the Scheduling Order.
However, for the earliest deadlines, the delay between when the proposed scheduling order is negotiated and filed, and when the Court issues it, can mean that the dates pass by in the interim. That can create confusion.
Typically, counsel resolve this by simply complying with the deadlines before the order issues. But parties sometimes seem to miss these dates when they occur before the order has been entered. It also creates the opportunity for further disagreement as counsel grapple with whether the proposed deadlines are “real” or not.
The Solution: Set Early Deadlines to Count from the Scheduling Order Issue Date
The way to avoid both both of these common scheduling order issues is simple: set the earliest case deadlines as a number of days from the scheduling order’s issue date.
Conveniently, this is exactly what many of the Court's form orders suggest. The parties just need to follow the instructions!
Though a scheduling conference may not be necessary, the scheduling order must be entered either way, and therefore makes a more reliable clock-starting guidepost.
Typically, entry of the scheduling order happens fairly quickly after the order requiring the parties to submit it, so not much time is lost. But for dates that the parties really must occur before entry of the scheduling order, the parties can also resolve these issues by agreeing over e-mail to treat the dates as so-ordered.
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