In First Quality Tissue, LLC v. Irving Consumer Products Ltd., C.A. No. 19-428-RGA (D. Del.), defendant swapped its previous counsel, Michael Best, for Latham and Watkins, and sought a twelve-week extension of the schedule.
The parties agreed that some kind of extension was needed regardless of the change in counsel, with numerous pending disputes, 24 noticed depositions, and only 3 days left in discovery. Plaintiff proposed a 4-week extension. Even with four weeks, the parties would likely have to dual-track the depos to get them done in time.
Judge Andrews, however, did not buy the idea that a change in counsel warrants a large schedule extension, and held that the responsibility for any delay should be borne by the client:
[I]t seems evident to me that the main reason Defendants seek a longer extension is that new counsel has entered for Defendants. As is all too frequently the case, when new counsel enter the case, they have different ideas about how departing counsel should have been handling the case, and now they want some relaxation from the existing framework of the case so that they can reshape the case to be more in conformity with their ideas about how the case should be handled
I think it is important to emphasize that this is not really about old counsel or new counsel. It is about the client. The client made choices. Whether old counsel and the client had a falling out, or whether old counsel was always just litigation/settlement counsel (and therefore less expensive), or something else, the client now has to live with its decisions, including its choice of counsel.
He emphasized the large size of Latham & Watkins in denying the schedule extension:
New counsel, I am certain, can do what it needs to do to be ready for trial. If new counsel could not do what they thought needed to be done in the then-existing schedule, they would not have taken on the client. The new law firm has “more than 2,700 lawyers across a global platform.” Six of them are apparently working on this case now, and, as Plaintiff points out, there are multiple lawyers at other firms who also represent Irving in connection with this case. Defendants can throw an army of lawyers at this case if that is what it needs.
Thus, I am going to sign Plaintiff’s proposed order regarding the schedule.
I have a feeling this is an opinion that we are going to see cited quite a bit in future scheduling disputes involving to a change in counsel...
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