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 is attached.
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