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Litigation Journal

Winter 2023 | Timing

Sua Sponte: A Judge Comments

Lorna G Schofield


  • Litigation that lasts too long can become prohibitively expensive.
  • Litigation that is rushed can interfere with a party’s rights to develop evidence and arguments.
  • Discovery deadlines are firm, absent a showing of diligence and good cause.
Sua Sponte: A Judge Comments
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Why can’t we all have a rocket docket? Rule 1 of the Federal Rules of Civil Procedure makes plain that the goal is to “to secure the just, speedy, and inexpensive determination of every action.” Justice is paramount. I hope you’ll agree that our federal courts do a pretty good job of dispensing justice. But speed and its cousin, cost, can affect justice. Litigation that lasts too long can become prohibitively expensive. Litigation that is rushed can interfere with a party’s rights to develop evidence and arguments. That Goldilocks spot of “just right” is hard to achieve. Discovery and judges are two reasons for delay.

My goal in discovery is reasonable haste. At the outset, I try to get discovery started promptly. I schedule an initial conference and issue a discovery schedule about 60 days after a case is filed. That is long before the six months that the federal rules permit for service and scheduling of the conference combined. Often the complaint has been served and the defendant has appeared and we are off to a quick start. If not, I prod the parties and make adjustments.

My default discovery schedule sets reasonable, but reasonably short, deadlines—about four months for fact discovery and another six weeks if expert discovery is necessary. This is suitable for most cases, by which I mean most cases I see in my court. In discussing a “rocket docket,” it’s important to understand what the docket looks like and that courts differ. I expect that every judicial district has some significant number of cases by frequent filers, usually with statutory attorney fees, and that involve little or no discovery and are never intended to go to trial. One example in my district consists of website accessibility cases under the Americans with Disabilities Act. In practical terms, my scheduling order in these cases imposes a deadline for the parties to settle, and these cases always settle. In many other types of cases, four months is sufficient for discovery. These include civil rights cases against police officers, employment discrimination cases, simple commercial disputes, and the like. Depending on your own practice, you may be surprised to learn that these types of cases are the bread and butter of my docket. Even in the Southern District of New York, the traditional Big Law and big business cases—securities fraud, antitrust, trademark infringement, which require more time for discovery—are comparatively rare.

I try to keep discovery moving. I inform the parties at the outset that discovery deadlines are firm, absent a showing of diligence and good cause. To encourage diligence, I require a detailed report midway through fact discovery of what has been done and what remains. Any request for an extension requires the same information and is granted sparingly. Discovery disputes are adjudicated within a couple of weeks, based on three-page letter briefs. Discovery generally proceeds despite any motion to dismiss, unless the case is obviously meritless from the outset. Some cases nevertheless defy efforts for a speedy resolution—personal injury cases in which treatment has not concluded, cases involving foreign parties, and other cases that raise impediments beyond the parties’ and my control. But in general, the lawyers understand and cooperate with my efforts to get wherever we are going efficiently.

A second cause of litigation delay is thornier—that is judicial delay in ruling on dispositive motions. Why does it take so long? It’s not for lack of effort; Westlaw tells me it published 203 of my decisions last year. The answer is twofold—the number of cases and motions, and the available time to decide them. My court, one of the largest federal courts, is allotted 28 active judges. For several years, we have had at least four unfilled judicial vacancies. The result is that in August 2022, for example, each of our 23 active judges had an average of 400 civil cases. Typically, I need several days to complete an opinion. If I publish two opinions in a week and two more motions are filed, then my number of pending motions is unchanged. But if more motions are filed, or an opinion requires more time, or I am in trial (writing no opinions), or a temporary restraining order or my criminal docket requires attention—all of which routinely occur—the number of pending motions grows. Consequently, I have scores of dispositive motions awaiting decision at any given time. Yesterday’s motion simply joins the queue. One small consolation is that, although the final resolution is delayed, discovery has concluded and the meter has stopped running.

So, yes, I aspire to a rocket docket. I would like to be able to set a firm trial date at the outset of the case and hold everyone, including myself, to that date. But at least for now, that’s not possible. I will continue to look to the Eastern District of Virginia aspirationally and explore more ways to deliver justice that is speedy and inexpensive. And I will look to lawyers for help.