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Superior Court Implements Discovery Pilot
Project
Superior
Court Chief Justice Barbara J. Rouse announced today
that the Superior Court's Business Litigation Session
(BLS) will implement a Discovery Pilot Project beginning
January 4, 2010. The BLS Pilot Project was developed
as a result of a joint effort of the BLS judges (currently
Margaret R. Hinkle, Stephen E. Neel, and Judith Fabricant)
and the BLS Advisory Committee to address the increasing
burden and cost of civil pretrial discovery, particularly
electronic discovery. The Pilot Project will be available
on a volunteer basis for all new cases in the BLS and
cases that have not previously had an initial case management
conference.
The
BLS Pilot Project incorporates some of the proposed principles
in the March, 2009 Final Report of the American College
of Trial Lawyers Task Force on Discovery and the Institute
for the Advancement of the American Legal System ("the
Final Report"). Stating that the civil justice system
was "in serious need of repair," the Final
Report proposed sweeping reforms of civil rules, discovery
and case management. The BLS is now adopting some of
these proposals.
For
cases in the BLS Pilot Project, the concept of limited
discovery proportionally tied to the magnitude of the
claims at issue will be the guiding principle. To accomplish
this objective, the BLS judges, with the parties, will
determine the scope and timing of permitted pre-trial
discovery. In making a proportionality assessment, the
BLS judges and the parties will consider such factors
as the needs of the case, the amount in controversy,
the parties' resources, and the complexity and importance
of the issues at stake.
Each
party participating in the BLS Pilot Project will be
expected at the beginning of the case to produce "all
reasonably available non-privileged, non-work product
documents and things that may be used to support that
party's claims, counterclaims or defenses." Thereafter,
the parties and the BLS judges will consider such pre-trial
discovery techniques as numerical and time limitations
and limiting the persons from whom discovery can be sought.
The
factors governing the scope of permitted electronic discovery
will include "the nature and scope of the case,
relevance, importance to the court's adjudication, expense
and burdens." If the parties cannot agree, the BLS
judges will conduct an electronic discovery hearing,
to address the scope of allowable proportional electronic
discovery and allocation of its cost.
Attorney
Joan A. Lukey, President of the American College of Trial
Lawyers and a member of the BLS Advisory Committee, strongly
endorses the BLS Pilot Project. She said, "Experienced
trial lawyers have recognized for years that discovery
has become the tail that wags the dog. I applaud the
BLS for adopting the principle, as did the American College
of Trial Lawyers, that discovery should be proportional
to the particular case. This is critical to repairing
a flawed process."
Chief
Justice Rouse states that the Pilot Project will be in
effect initially from January through December of 2010.
Participants in the BLS Pilot Project will be asked to
provide feedback so that data may be gathered and analyzed.
Chief Justice Rouse states that the Pilot Project's efficacy
will then be evaluated and refined for future use.
A
copy of the BLS
Pilot Project is
attached.
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