Delaware discovery deadlines: thirty days, forty-five if you are the defendant, and an unstated objection is waived

Delaware runs all three written discovery devices on the same pair of numbers. Thirty days from service of the request; forty-five days for a defendant, measured not from the request but from service of the summons and complaint.

That second number is the one that catches people. It is a floor tied to the start of the case, so a request served on a defendant in week one buys the full forty-five days, while the same request served in month three buys thirty.

The two clocks

Rule 33(b)(3):

The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint upon that defendant. The Court may allow a shorter or longer time.

Rule 34(b) repeats the formula for a written response to a document request, and Rule 36(a) phrases it as a protection rather than a permission: "unless the Court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon the defendant."

The Court may allow a shorter or longer time in each case.

An objection you do not state is gone

Rule 33(b)(4):

All grounds for an objection to an interrogatory shall be stated with specificity. Any ground not stated in a timely objection is waived unless the party's failure to object is excused by the Court for good cause shown.

A general objection — "objected to as overbroad, unduly burdensome and not reasonably calculated to lead to admissible evidence" — states categories rather than grounds, and forecloses anything it does not name.

Rule 33(b)(1) also requires an answer to the extent the interrogatory is not objectionable: the objecting party "shall state the reasons for the objection and shall answer to the extent the interrogatory is not objectionable." An objection is not a reason to answer nothing.

Documents: say whether you are withholding

Rule 34(b) carries a requirement many state rules still lack:

An objection must state whether the responding party is withholding or intends to withhold any responsive materials on the basis of that objection, and the responding party is under a duty to supplement its response to the extent it subsequently determines that it will withhold any responsive material on the basis of an objection.

Two obligations. The objection must say whether anything is actually being held back — an objection lodged over a category from which everything is produced anyway has to say so. And the duty is continuing: if you later decide to withhold on a ground you already stated, you must supplement.

The rule also requires the request itself to "describe each item and category with reasonable particularity" and to "specify a reasonable time, place, and manner", and where objection is made to part of a category, "the part shall be specified and inspection permitted of the remaining parts."

Admissions: silence admits

Rule 36(a) works on the ordinary model, and the consequence is automatic:

The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the Court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney

Rule 36(b) then makes it stick: "Any matter admitted under this Rule is conclusively established unless the Court on motion permits withdrawal or amendment of the admission."

Two limits on what an answer may say. Lack of knowledge is not available unless "the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient". And a party who thinks the request goes to a genuine trial issue "may not, on that ground alone, object" — the route is to deny, or to explain why admission and denial are both impossible.

Two formatting rules that are easy to miss

Delaware puts requirements on the shape of written discovery that most states leave to local practice.

Restate the question. Rule 33(b)(1) and Rule 36(a) both require it: "Each interrogatory shall be restated as numbered and shall be answered separately and fully in writing under oath", and "Each request for admission shall be restated as numbered and shall be answered separately and fully in writing." Answers keyed only to numbers do not comply.

Leave room to write. Rule 33(a) closes with: "All interrogatories as served shall contain a reasonable amount of blank space after the question to permit the insertion of the answer." That obligation is on the party serving the interrogatories.

Answers signed by the attorney

Rule 33(a) allows an unusual two-stage verification for interrogatory answers filed under Rules 3(h)(1)(I) and 5(d)(1):

Interrogatory answers filed pursuant to Rules 3 (h)(1)(I) and 5(d)(1) need not be answered under oath by a party if the answers are signed by the attorney making them. If a party elects to file answers signed by the attorney, sworn answers signed by a party shall be filed within 30 days of the date when the answers signed by the attorney are filed.

The attorney's signature buys time, not an exemption. Sworn answers signed by the party are due 30 days later, and that second deadline is easy to lose track of because nothing prompts it.

Counting the days

Rule 6(a) governs every period above:

In computing any period of time prescribed or allowed by these Rules, by order of court, or by statute, the day of the act, event or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday or Sunday, or other legal holiday, or other day on which the office of the Prothonotary is closed, in which event the period shall run until the end of the next day on which the office of the Prothonotary is open. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and other legal holidays shall be excluded in the computation.

The eleven-day line matters throughout Delaware practice, because so many of its deadlines sit just under it. A 10-day period — a Rule 12 answer after a denied motion, a Rule 59 motion, the Rule 37(e) motion deadline — counts business days only. A 20-, 30- or 45-day period counts every day.

The "other day on which the office of the Prothonotary is closed" clause is broader than the usual weekend-and-holiday rule, and covers a closure for weather or any other reason.

Rule 6(e) adds the mail allowance:

Whenever a party has the right to or is required to do some act or take some proceeding within a prescribed period after being served and service is by mail, 3 days shall be added to the prescribed period. The additional 3-day period applies only to actions taken by parties and does not apply to actions taken by the Court.

Three days, and only for parties — a period running against the Court is not extended.

Extending a deadline

Rule 6(b) splits on whether you ask in time.

Before the period expires, the Court may enlarge it for cause shown "with or without motion or notice" — so an unopposed extension need not be litigated.

After it expires, the standard rises: the Court may permit the act "where the failure to act was the result of excusable neglect".

There is also a list the Court may not extend at all: actions under Rules 50(b), 52(b), 59(b), (d) and (e) and 60(b), "except to the extent and under the conditions stated in them."

That list repays a second look. Rule 60(b) appears in it, yet Rule 60(b) states no deadline of its own — so there is nothing there for Rule 6(b) to enlarge. What the list does foreclose is any extension of the Rule 59 clocks: 10 days for a new trial or to alter or amend, and 5 days for reargument. See setting aside a Delaware default judgment.

Rule 6(d) sets motion timing generally: a written motion and notice of hearing served "not later than 2 days before the time specified for the hearing", with opposing affidavits "not later than 1 day before the hearing".

If a response never comes

The compel route is Rule 37, and Delaware makes the paperwork a gating requirement — the Prothonotary will not accept a discovery motion without a certification detailing the dates, time spent and method of your attempt to resolve it. See the Delaware motion to compel.

Rule 33(b)(5) and Rule 34(b) both point there expressly for an objection or a failure to answer.

How Delaware compares

A short checklist

1. Work out which clock applies. As a defendant early in the case, count 45 days from service of the complaint, not from the request.
2. State every objection ground with specificity. Anything unstated is waived.
3. Answer the unobjectionable part rather than objecting wholesale.
4. Say whether you are withholding documents, and supplement if that changes.
5. Restate each interrogatory and request in your response.
6. If you file attorney-signed interrogatory answers, diary 30 days for the sworn version.
7. Check whether the period is under 11 days. If so, weekends and holidays do not count.
8. Add three days for service by mail — but only to your own deadlines.
9. Ask for an extension before the period runs. Afterwards you need excusable neglect.

Where these rules live

• Del. Super. Ct. Civ. R. 6 — Time
• Del. Super. Ct. Civ. R. 26 — General provisions governing discovery
• Del. Super. Ct. Civ. R. 33 — Interrogatories to parties
• Del. Super. Ct. Civ. R. 34 — Production of documents and things
• Del. Super. Ct. Civ. R. 36 — Requests for admission
• Del. Super. Ct. Civ. R. 37 — Failure to make discovery: Sanctions

This page explains what the rules say. It isn't legal advice.