A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Scheduling Conference

Changing the Court's Defaults in a Scheduling Order May Be Risky

Andrew E. Russell, Oct. 14, 2024
Scheduling Conference Scheduling Order

But it seems so pretty
AI-Generated, displayed with permission

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, …
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Scheduling Order Ambiguities and a Proposed Solution

Emily DiBenedetto, Aug. 24, 2022
Case Management Computing Time

Certainty > Ambiguity
Certainty > Ambiguity Jon Tyson, Unsplash

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 ...

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"The Court . . . is disappointed that the parties have not been able to come to agreement on some of the disputes, which at first blush seem silly . . . ."

Andrew E. Russell, June 21, 2022
Scheduling Conference Scheduling Order

Silly dog with googly eyes
Jane Almon, Unsplash

Kind of a funny order from Judge Noreika last week:

ORAL ORDER Setting Telephonic Scheduling Conference - The Court has reviewed the parties' proposed scheduling order and is disappointed that the parties have not been able to come to agreement on some of the disputes, which at first blush seem silly . . .

Eos Positioning Systems, Inc. v. ProStar Geocorp, Inc., C.A. No. 22-201-MN, D.I. 27 (D. Del.).

What were the silly disputes, you ask? Here they are, according to the letter filed with the draft scheduling order (D.I. 26-1):

  • Whether to include "to the extent any exist" after "[defendant] shall produce sales figures for the accused product(s).”
  • Whether the case is …
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How to Get Things Moving

Nathan R. Hoeschen, Dec. 16, 2021
Scheduling Conference Discovery Dispute

jon-tyson-PXB7yEM5LVs-unsplash
Norman Tsui, Unsplash

One of the oddities of beginning a case is the somewhat tortured interaction between Rules 26 and 16. Under Rule 26(d), most discovery can't be served until after the parties have their initial scheduling meet and confer. That conference, discussed in Rule 26(f), should take place "as soon as practicable—and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b)." Rule 16(b), in turn, requires the court to issue the scheduling order:

as soon as practicable, but unless the judge finds good cause for delay, the judge must issue it within the earlier of 90 days after any defendant has been served …
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