This is a way of drafting scheduling order deadlines I haven't seen before. In Novarad Corp. v. Medivis, Inc., C.A. No. 21-1447-VAC-MPT (D. Del.), the parties initially agreed to a scheduling order that included a deadline for document production to be "substantially complete."
Many (maybe all) of the judges' form scheduling orders include a deadline for substantial completion of document production. Parties generally understand the substantial completion deadline to mean the production of enough documents that fact depositions can begin.
Exactly how many documents that is can be an occasional source of disagreement. There is not a lot of well-known precedent about exactly what proportion of documents must be produced before the substantial completion deadline, although we know that withholding 33% of your documents until after the deadline is too many.
Generally I've thought of the substantial completion deadline as being "basically all" documents other than the supplemental productions (e.g., of new material) and the leftover documents that are inevitably discovered after the main collection. But opinions can differ. In any case, producing significant amounts of documents after depositions starts puts you at risk of having to present your witnesses for a second deposition—always risky—and of sanctions, such as attorneys fees. So be careful.
With that background, I thought the way the parties handled the substantial completion deadline in Novorad was interesting. Last week, they stipulated to replace the substantial completion deadline with two deadlines:
- "Each party shall produce at least 50% of its production documents as part of fact discovery" by Oct. 3, 2022; and
- "Each party shall produce at least 75% of its production documents as part of fact discovery" by December 1, 2022, the original substantial completion deadline.
In short, they replaced the substantial completion deadline with a 75% completion deadline, and added a 50% completion deadline a couple of months before that. The deadline for fact discovery (including fact depositions) remained unchanged at 7 months (!) later.
The Court is generally open to these kinds of discovery agreements and, unsurprisingly, so-ordered the change.
Does It Makes Sense to Do It This Way? Probably Not, for Most Cases...
I'm not sure why the parties in Novorad left 7 months between the substantial completion of document production and the close of fact discovery. That's a long time, even for the 140 total hours of deposition time they agreed to.
In light of the odd schedule, it probably made sense for the parties to change the substantial completion deadline to a "75%" completion deadline, essentially moving some of the document discovery into that 7-month gap. Of course, now it is unclear when in the schedule depositions are intended to start, but they can work that out later.
Would defining this deadline as a percentage work in other cases? Probably not. The point of the substantial completion of document production deadline, as parties typically understand it, is that document production mostly ends and depositions begin. But in most cases it wouldn't make sense to have 25% of document production outstanding when depositions start.
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