Although its included on every scheduling order I've ever seen, the import of the close of fact discovery is not always obvious. Can you bring discovery disputes after? Do you need to update discovery responses after? what even is a fact?
Judge Andrews had an order yesterday in Exelixis, Inc. v. Sun Pharm. Ind. Ltd., C.A. No. 24-1208-RGA, D.I. 188 (D. Del. Mar. 20, 2026), that sheds a bit of light on what you can't do near the close of fact discovery.
The defendant had filed a motion for international judicial assistance (Hagueling, I call it) last month, a couple weeks before the close of fact discovery. The Plaintiff opposed on the usual grounds that the discovery sought was unnecessarily duplicative and burdensome. The reply brief was filed last week, 2 days before fact discovery closed.
Judge Andrews denied the request noting the lateness in light of the lengthy time necessary for Hagueling in India:
The motion for issuance of letters of request for international judicial assistance is DENIED. The fact discovery cut-off is March 19, 2026. Briefing on the motion was completed two days before the fact discovery cut-off. It would take some amount of time, which I assume at a minimum would be two months, before a deposition could take place. Azurity represents, without contradiction, that it has produced the NDA, "many samples" of its proposed product and thousands of documents. Dr. Dube, Azurity's witness, could not answer all relevant questions. I do not think that is a sufficient justification to conduct depositions in India well-beyond the fact discovery cut-off, and I am unconvinced that Plaintiff has shown that the two depositions are proportional to the needs of the case.
Right off the bat, I note that Judge Andrews is being preeeeetty positive in his estimate for how long Hague service takes in India. More to the point. this is a good lesson to start Hagueling early. It's a notorious pain in the tuckus, so most parties understandably want to wait until they've seen everything the other side produces before deciding if its worth the hassle, but its better to get the ball rolling if you can so you don't get caught filing your motion right at the cutoff.
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