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 ...