Superior Court Implements Discovery Pilot Project
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.
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
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.
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.
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.
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.”
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.