If the party chooses not to involve the court, that party will be deemed to have waived the right to contest any late filings by opposing counsel from that time forward. There will be no motions to compel, motions for sanctions, motions to preclude evidence, or motions to continue the trial. It is entirely possible, under this scenario, that some vital discovery will not be produced until the day before trial. Still, the party prejudiced by the delay accepts that risk by failing to promptly alert the trial court when the first discovery deadline passes.
Note, in particular, the point that absent a motion to the court, "any late filings" may not be opposed. That may mean that even one failure to ask for court relief, even on a small issue, will bar relief from even later, more serious violations of a scheduling order. While it is doubtful Christian really intends to go that far, that is possible.
Second, Christian also seems to require the trial courts to more closely supervise pretrial practice. While expressing sympathy for busy trial courts, the Christian opinion also noted they "should resolve [scheduling] concerns." This point was made because the trial court had refused to hold a conference on the request to change the schedule. Hence, the Supreme Court suggested that was not correct.
Exactly what Christian and its similar decisions may mean for future practice is not altogether clear. More motion practice seems inevitable. But how far the trial court will go in enforcing the waiver-of-objection rule remains to be seen.
Edward M. McNally is a partner at Morris James in Wilmington and a member of its corporate and fiduciary litigation group.
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