A recent ruling of the Delaware Court of Chancery addressed the standards for enforcing scheduling orders and explained the circumstances in which they might be modified. In Volt Energy Utility, LLC v. Elliott, C.A. 2024-0385-PAF, Order (Del. Ch. Mar. 4, 2026), the court instructed that: “Scheduling orders are not merely guidelines but have the same full force and effect as any other court order.” Id.

The factual context for this order denying a motion to amend the scheduling order was a lack of clear communication among counsel about scheduling issues. The court also observed that a common provision in scheduling orders allows a deposition of a trial witness not previously disclosed to be taken within 14 days. This is designed to promote fairness to allow a party who is not calling the witness to take the deposition to avoid being blindsided at trial–even though that might not be explicit. In this case however, the movant sought to use that provision to depose its own proposed trial witness. Another point made by the court in this case is that a non-natural person may not serve as a trial witness, but one party attempted to use that provision for something other than its intended purpose.

The order cites to Court of Chancery Rule 6 (b)(1)(B) for the requirement that good cause must be shown to extend the time to complete discovery on a motion made after the time has expired if the party failed to act because of excusable neglect. Excusable neglect generally focuses on “(1) Whether a party has demonstrated reasonable diligence; and (2) Whether the opposing party will be improperly prejudiced by an extension.” Id. (citation omitted).

The court explained that: “If a party cannot meet a deadline, the onus is on the party to be forthcoming and transparent about the situation and the reasons for it. . . . Attorneys shirk their obligations to the court and make matters worse when they fail to communicate with the other side, allow problems to escalate, and miss critical deadlines.” Id. (citation omitted).

The court concluded that the facts of this case demonstrated neglect that is not excusable, and that is prejudicial based on the imminent trial date. Although the motion to amend the scheduling order was not successful, the court denied a request for fee shifting because the motion was not the product of bad faith.

Previously on these pages over the last 21 years or so, I have highlighted decisions of the Delaware Supreme Court and Delaware trial courts, as well as a law review article by a Vice Chancellor, all of which provide additional reminders of the importance of complying with deadlines in scheduling orders and explanations of the standards to seek modification of them. See, e.g, here, here, here, here, and here.

Although related to compliance with discovery rules in general, in addition to compliance with deadlines in scheduling orders, the following quote from the 2018 Chancery decision in the matter styled In Re Examworks Group, highlighted on these pages at the foregoing hyperlink, is relevant to this topic and eminently worth repeating:

“If participants suspect that others are not following the rules, then the process deteriorates. People who follow the rules feel like chumps when others seem to be cutting corners or breaking rules and getting ahead. People who otherwise might not think of pushing limits become more aggressive if they think everyone else is doing it. It is this broader, systemic interest that the Delaware Supreme Court seems to have had in mind when stressing the courts must address discovery abuse not only to protect litigants, but also to protect the public and the bar.” See footnote 57.