Each of our judges in Delaware has one or more form scheduling orders that sets limits on things like the number of motions in limine (typically 3), pages limits for summary judgment and Daubert motions (typically 40/40/20 or 50/50/25), and discovery dispute procedures.
Here is a scenario I've seen a couple of times:
- The parties agree to change the limits in the form scheduling order to give themselves more pages, more motions, etc.
- The change is visually small and not particularly noticeable (e.g., "three" MILs becomes "five" MILs, "forty" pages becomes "eighty" pages, etc.).
- The Court so-orders the undisputed proposed scheduling order.
- When the time comes to actually file the extra MILs or extra-long briefs, there is uncertainty about whether they will actually be permitted—or, worse, the parties file them and they are struck.
This appears to have played out last week, for example, in Novartis Pharmaceuticals Corporation v. MSN Pharmaceuticals Inc., C.A. No. 22-1395 (D. Del.). There, the parties filed a proposed scheduling order that did not permit SJ motions, as is typical for an ANDA case, but instead allowed 40 pages for opening/answering Daubert motions, and 20 pages for Daubert replies. Here is the text of the first proposed scheduling order, as submitted:
b. Objections to Expert Testimony. To the extent any objection to expert testimony is made pursuant to the principles announced in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), as incorporated in Federal Rule of Evidence 702, it shall be made by motion no later than [Novartis’s proposal: October 25, 2024] [Defendants’ proposal: September 27, 2024], unless otherwise ordered by the Court. Oppositions to such motions shall be filed no later than [Novartis’s proposal: November 8, 2024] [Defendants’ proposal: October 11, 2024], and replies to such motions shall be filed no later than [Novartis’s proposal: November 15, 2024] [Defendants’ proposal: October 18, 2024]. Absent an order of the Court upon showing of good cause, each side is limited to one forty-page opening brief, one forty-page answering brief, and one twenty page reply brief for all its Daubert motions.
D.I. 67 ¶ 10.b.
As you can see in the above, the parties flagged a bunch of disputes about the briefing dates, but did not flag what was essentially a stipulated expansion of Daubert briefing to 40/40/20 pages.
The scheduling order was eventually so-ordered after the Court resolved the marked disputes.
Much later in the case, however, when the parties actually filed their briefs (and a stipulation re-allocating some of the pages), the Court struck one of them, and amended the scheduling order to permit only a more typical 20/20/10 page briefing schedule:
ORAL ORDER: Inasmuch as Defendants Opening Brief . . . in support of their Daubert motion exceeds the page limits, it is STRUCK. Ordered by Judge Richard G. Andrews on 10/8/2024.
Id., D.I. 319.
ORAL ORDER: The Scheduling Orders filed on July 6, 2023 . . . are now AMENDED to reflect as follows regarding paragraph 10, subsection b: "Absent an order of the Court upon showing of good cause, each side is limited to one twenty-page opening brief, one twenty-page answering brief, and one ten-page reply brief for all its Daubert motions". Ordered by Judge Richard G. Andrews on 10/8/2024.
Id., D.I. 320.
My takeaway from this is that, if you want to file a proposed scheduling order that changes the default page/motion limits in a way that impacts the Court (particularly if it amounts to a stipulation that would often be denied), it's probably a good idea to flag that change for the Court.
You might think "if we flag it, the Court may deny it"—but it's better for that to happen earlier rather than later. I don't think anybody wants to be in a position where their 40-page Daubert briefs get struck.
If you enjoyed this post, consider subscribing to receive free e-mail updates about new posts.
