PUBLIC INFORMATION OFFICE
SUPREME JUDICIAL COURT
John Adams Courthouse
One Pemberton Square
(617) 557-1114 December 1, 2009
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.