MEMBERS OF THE BAR REPLY COMMENTS

Comments from Members of the Bar regarding a proposed Debt Collection Scheduling Order and Worksheet as it applies to Administrative Directive 2011-1 Consumer Debt Collection Actions.

REPLY COMMENT 1:

This schedule is utterly ridiculous.  Even if you serve written discovery the day after an answer is filed, written responses are not required until 4 weeks later.  Moreover, documents are not required to be produced under Rule 34 until a reasonable time after the written responses are served.  A party may not have any documnents or even writtten discovery responses in sufficient time to notice any depositions (and issue any subpoenas that may be required) especially any depositions under Rule 30(b)(6). 

Additionally, there would be absolutely no ability to do any follow-up or narrowing written discovery (many attorneys wait until after interrogatory answers are received to serve Requests for Admission because if you do not, you get a whole lot of nothing in return or the sheer number of RFA's could be daunting).

Ultimately, this schedule is unrealistic, unworkable and essentially deprives all parties of due process.

REPLY COMMENT 2:

November 29, 2011

The Honorable Alex J. Smalls
Chief Judge                                                                            
Court of Common Pleas
New Castle County Courthouse
500 N. King Street
Wilmington, DE 19801

            Re:       Proposed Scheduling Order for Debt Collection Cases

Dear Chief Judge Smalls:                                          

            I write to Your Honor on behalf of myself and all counsel copied on this letter (collectively referred to as “Members of the Creditors’ Bar”).  The Court has graciously invited comments from members of the Bar to the proposed Debt Collection Scheduling Order and Worksheet (“Draft Scheduling Order”) as it applies to Administrative Directive 2011-1 Consumer Debt Collection Actions.  Since the Court directed that any comments to the Draft Scheduling Order be transmitted via the Court of Common Pleas’ website, this letter has also been posted.

            Please consider the following comments/questions related to the Draft Scheduling Order:

   1.  Timeframes relative to completion of discovery; filing of, responding to and the hearing of dispositive motions; and trial dates are unworkable.

a.  Deadlines do not accommodate settlement negotiations, investigation of unique issues and scheduling delays/conflicts.

b.  What is meant by “completion” of discovery within six (6) weeks from the date the Answer is filed?  For example, it is unclear from the language of 2(a) whether depositions of fact and/or expert witnesses have to be completed within the six week period or just noticed within six weeks.  The required timeframe would not allow for the discovering party to serve additional discovery based on initial and/or incomplete responses.  Extensions to respond to discovery could not be stipulated to by the parties as they would likely violate the Court’s discovery deadline.  The failure of a party to timely respond to discovery will result in increased motion practice and court intervention. 

c.  Completion of discovery within six (6) weeks from the date the Answer assumes the availability of a “prompt” motion hearing date to a discovering party seeking to compel discovery.  This does not reflect the reality of the Court’s current motion practice.  What happens when a pro se defendant files an Answer with the Clerk’s office, but does not serve a copy to the opposing party who isn’t notified an Answer has been filed until weeks later?

d.  Requiring dispositive motions to be filed within seven (7) weeks after filing the Answer assumes, unrealistically, that all discovery is responded to in a timely fashion.  Does an Order to compel discovery extend the dispositive motion deadline or will the discovering party be prejudiced by not being permitted to file a dispositive motion after the deadline has expired?  Provision 2c(iii) allows dispositive motions to be served on ten (10) days notice, but the Proposed Scheduling Order gives the responding party twenty (20) days to respond.  Further, as is the case with  the discovery timeframe, the dispositive motion timeframe assumes parties have the ability to promptly obtain a motion hearing date which is typically not the case under the current scheduling system.

e.  The Court’s Speed docket provides for trial six (6) months after an Answer is filed.  The Draft Scheduling Order requires trial twelve (12) weeks after an Answer if filed.  Why should debt collection cases be subject to an even “speedier” docket?

            2.  Will pre-trial hearings still be available?  If so, judgments by default should be available as a sanction for the failure of a party to attend the pre-trial hearing, as is the common practice in Kent and Sussex Counties.

            3.  Motions to reschedule trial should be permitted to be filed at any time prior to trial.  The current practice allowing the Court to consider such motions, and any oppositions, should not be altered.

            4.  Is the “Standard Scheduling Order Worksheet” merely to assist the parties or is it required to be completed and/or shared with opposing parties/counsel?

            As Your Honor is aware, Members of the Creditors’ Bar previously shared their comments and opinions with the Court in connection with Administrative Directive 2011-1 Consumer Debt Collection Actions both at the “Talk to the CCP Judges” seminar and through a post on the Court’s website .  While we continue to support the Court’s goal of improving the administration of justice in debt collection cases, sweeping changes to the manner in which debt collection cases are litigated should not be made through administrative directives and scheduling orders.  We respectfully suggest that a more appropriate and balanced mechanism to implement change is through revision of the Civil Rules of the Court of Common Pleas following recommendations by a Civil Rules Advisory Committee comprised of members of the Bench and Bar.  This would allow for the Court to give consideration to all stakeholders in this litigation.

                                                                        Respectfully,
                                                                        Jeffrey P. Wasserman