The Delaware Supreme Court recently announced a new standard refining the rules that govern litigants’ requests for extensions. Since 2010, the “Drejka analysis” provided a six-factor test to apply when considering whether to dismiss a case for discovery violations. However, the Delaware Supreme Court realized that trial courts have struggled to apply those factors consistently.

Now, the Delaware Supreme Court has provided useful “practice guidelines” that aim to prevent courts from having to engage in a Drejka analysis at all. In the most important of four appeals decided together, plaintiffs were the wife and children of a man who committed suicide shortly after visiting the defendant health care provider. Both sides agreed informally that plaintiffs could file their expert report after the deadline set in the court’s scheduling order.

Plaintiffs did not file the expert report within the extended deadline, but they did request a conference with the court to discuss, among other things, the discovery schedule. The trial court refused to hold a conference, and the parties then resolved scheduling issues on their own. Five weeks before trial was set to begin, however, defendants filed a motion to preclude plaintiffs’ expert testimony, which had only recently been identified. The court granted the motion, and defendants won on summary judgment. Plaintiffs appealed.

In reversing the judgment, the Delaware Supreme Court highlighted the inconsistency in permitting a party to demand enforcement of deadlines when it previously granted extensions. To strike the proper balance between fairness to litigants and efficient court administration, the Delaware Supreme Court advised that, in the future, parties who act without court approval “do so at their own risk.”

If one side misses a discovery deadline, opposing counsel has two choices: (1) promptly notify the court by a motion to compel, proposal to amend the scheduling order or request for a conference; or (2) resolve the matter informally, thereby waiving the right to contest late filings from that time forward. Though litigants may continue to resolve scheduling issues informally, they are now expected to file timely proposed amended scheduling orders. The Delaware Supreme Court believes this approach will best support the state’s strong public policy of deciding cases on the merits.

Christan v. Counseling Resource Associate, Inc., C.A. No. 09C-10-202 (Del. Supr. Jan. 2, 2013).