Neither fish, nor fowl, the motion for clarification is often a cursed thing - struggling to find succor in a world that does not want it to exist.
(Like lawyers, amirite?)
Unlike motions for reconsideration (or reargument, as we call them in Delaware), the local rules do not provide any particular guidance on what such a motion should like like, or the standard that needs to be met. I've often seen them criticized as essentially stealth motions for reconsideration designed to circumvent the rigid requirements of such a motion.
I've never done a full analysis of the likelihood of such a motion being granted (hope for a slow news day next week) but my guess is that most of them go down like last week's ruling in Aortic Innovations, LLC v. Edwards Lifesciences Corp., C.A. No. 23-258-JPM, D.I. 222 (D. Del. Jan 17, 2025).
In that case, the parties (weirdly) filed competing motions to extend the fact discovery deadline on the same day, presenting slightly different proposed schedules that allowed additional time for the completion of depositions and whatnot. Visiting Judge McCalla resolved the motions and adjusted the schedule in a brief oral order consisting only of the relevant dates:
ORDER SETTING DISCOVERY SCHEDULE: Fact Discovery Deadline due February 27, 2025; Initial Expert Witness Disclosures Due April 3, 2025 . . . .
After the Court extended the schedule, however, the Defendant issued several new subpoenas to third parties. Plaintiff then moved for an order clarifying that the extension only allowed for the completion of existing discovery, and not for the service of new requests. The main argument was that both parties' motions had focused on the time necessary to complete the existing discovery, rather than the need for additional requests.
Judge McCalla denied the motion, finding no ambiguity requiring clarification in the prior order amending the schedule:
In its Order Setting Discovery Schedule, the Court extended the fact discovery deadline to February 27, 2025. Plaintiff argues neither party requested an extension for the purpose of serving additional fact discovery. However, the Court used its “broad discretion” to grant the Parties’ requests so that the Parties could complete discovery as a whole. A fact discovery deadline is just that: a deadline to complete all discovery promulgated by the Parties.
To the extent the Order Setting Discovery Deadline is “ambiguous or vague” the Court makes clear: the Order Setting Discovery Schedule only established a deadline of completion and did not set out a cap on that discovery
Id. at 3-4 (internal citations omitted).
The order is additionally interesting for having one of the few recitations for the standard in moving to clarify.
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