It’s common knowledge that the vast majority of civil disputes are settled at some point before trial, with estimates of settlement rates ranging from 90% to 95%. That of course in turn means that, in almost all cases, the bulk of the legal work is performed pre-trial, during the discovery process.
THE PROBLEMS WITH DISCOVERY
Unfortunately, the discovery process often involves disputes over the process itself. A party on the receiving end of Special Interrogatories, Requests for Admission, or Demands for Inspection and Production of Documents objects to certain requests (they’re over-broad and burdensome, or not reasonably calculated to lead to discovery of admissible evidence, or protected by attorney-client privilege or the work product doctrine). Or a subpoena for records is served on a third party, and the other side (and/or the third party) objects to the scope of the subpoena. The serving party follows up with the “meet and confer” process required by CCP Sec. 2016.040. Sometimes agreement is reached during that process, but often it is not. The serving party then files a motion to compel, the receiving party files an opposition that is then countered by a reply brief, a hearing is held, and the court makes its decision.
Here are some of the problems with this scenario:
- It’s expensive;
- Its outcome is uncertain;
- It causes delay, given the time required to prepare the motion, and the lag between filing the motion and the first available hearing date (which can sometimes be several months);
- It places burdens on the court; and
- It includes the risk of sanctions being awarded, which could include monetary sanctions, issue sanctions, evidentiary sanctions, or, if the court views a party’s conduct as being extreme enough, even terminating sanctions.
DISCOVERY FACILITATION TO THE RESCUE
These were some of the reasons that several years ago California courts amended their Local Rules to include “Discovery Facilitation” rules. Marin County Superior Court adopted what was then numbered as Rule 1.13 in July 2012, and I was honored to have been a member of the select bench-bar committee that was asked to write the rule for the court. Modeled after the Sonoma County Superior Court’s facilitation rule, the Marin rule is now numbered as Rule 2.13. In general, upon filing a discovery motion, the parties are required to participate in good faith in what is essentially a mediation process with a qualified facilitator randomly selected from a panel maintained by the court. The parties may also request referral to the program even before a motion is filed. The facilitator provides the first 2 hours pro bono, and if the matter isn’t resolved and the parties wish to continue in the process, the parties then retain the facilitator directly. The court takes over only if the facilitation process is unsuccessful, and the program has been extremely successful in drastically reducing the number of discovery disputes that actually result in a court hearing.
Unlike a discovery referee appointed by agreement of the parties pursuant to Code of Civ. Proc. Sec.s 638 and 644, the discovery facilitator does not have the power to actually decide the outcome of a discovery dispute. However, the facilitator does have the power to make recommendations to the court (Marin Co. Sup. Ct. Local Rule 2.13.H.3), and that power gives the facilitator substantial leverage when helping the parties to negotiate a resolution of the disputed issues. And if the facilitator happens also to be an experienced mediator, he or she brings the same negotiation skills to the facilitation process as would be used in mediation, including exploring and understanding the parties’ respective needs and interests, and building sufficient trust with both sides to be able to encourage them to be receptive to compromise.
IN WHAT CASES IS DISCOVERY FACILITATION APPROPRIATE?
All of this begs the question, in what types of disputes is discovery facilitation appropriate? The simple answer is, it’s appropriate in all types of civil disputes, ranging from the simplest fender-bender to the most complex multi-party litigation.
I have served as discovery facilitator in the full range of civil disputes, from the simplest to the most complex. And although the time required for resolution obviously varies depending upon the amount and complexity of the issues to be resolved, the process is essentially the same in all cases – review of the propounded discovery, the responses, and the parties’ prior written meet and confer efforts; multiple separate and joint conferences or Zoom meetings with counsel; request for and review of the parties’ Separate Statements on the issues in appropriate cases (especially if there are complex legal issues involved, such as where the production of trade secret information or documents is in dispute); and negotiation of a resolution that is acceptable to both sides. If that process sounds familiar, it should – because it’s essentially a mediation, with the facilitator assisting the parties in crafting a resolution of their own making, with the facilitator’s help. The main difference with a mediation, however, is that the discovery facilitator, as mentioned above, has the ability to make recommendations to the court if the dispute is not resolved.
WHAT TYPES OF DISCOVERY DISPUTES ARE APPROPRIATE FOR RESOLUTION THROUGH FACILITATION?
Just as facilitation is appropriate in all types of cases, it’s also appropriate with all types of discovery. Whether the dispute arises out of what a propounding party believes is an inadequate response to a Form or Special Interrogatory, or an improper objection and refusal to produce certain documents, or an evasive response to a Request for Admission, a facilitator can assist the parties in resolving the dispute without court intervention. A facilitator can also assist the parties in deposition scheduling – which can be especially helpful when there are multiple depositions to be taken by both sides. I’ve served as discovery facilitator in a wide range of cases with a wide range of discovery issues, and, just as with mediation, I’ve found that just about all discovery disputes that go through the facilitation process end up being resolved without the court’s intervention.
As always, I remain dedicated to providing the best possible ADR services in the format that best suits the parties’ needs, whether through Virtual Dispute Resolution or in person when the parties are comfortable in doing so. I look forward to working with you again.
Best regards and stay well,
Phil Diamond