We've talked about how it's generally understood that parties can agree to modify certain deadlines in the District of Delaware without a stipulation, such as discovery response deadlines, deposition dates before the close of fact discovery, or deadlines under the Default Standard.
We were careful to exclude depositions occurring after the close of fact discovery from that list. After all, the fact discovery deadline is set by court order. Thus, parties often stipulate to take fact depositions after the close of fact discovery.
An opinion from Judge Williams yesterday held that these stips are unnecessary, and the parties can take depositions after the close of fact discovery without any stip to that effect:
ORAL ORDER: The Court has reviewed the Stipulation to take deposition outside fact discovery . . . . The parties are able to stipulate between themselves to a deposition occurring after the close of discovery date in the scheduling order. The Court, however, does not Order and/or get involved in the enforcement of such agreements.
Persawvere, Inc. v. Milwaukee Electric Tool Corp., C.A. No. 21-400-GBW, D.I. 106 (D. Del. Apr. 11, 2023).
If you're wondering, the stip was just a standard stipulation to extend the deadline for fact depositions:
Plaintiff Persawvere, Inc. and Defendant Milwaukee Electric Tool Corporation (collectively, the “Parties”), by and through their undersigned respective counsel, hereby agree and stipulate that the deposition of Mr. Paul Fry can proceed on April 26, 2023, which is after fact discovery closes on April 21, 2023.
Id. at D.I. 105.
So it seems that in Judge Williams cases parties need not (and should not) file a stip to take depositions after the close of fact discovery. As to the other judges, your mileage may vary.
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