shake-handsFew things are more frustrating to a civil litigator than a protracted and costly discovery dispute. Discovery motions consume valuable time and energy, and judges are often reluctant to rule on the merits, or even allow a discovery motion to be filed, without first exhausting informal efforts to resolve the dispute.

Discovery facilitation is a voluntary pilot program that was launched in September 2013 to make litigation faster, easier and more cost-effective. It currently applies to cases assigned to Departments 20 (Judge Robert Freedman) and 23 (Judge John True III). Plans are under way, however, to slowly roll out this program court-wide starting in early 2015. Revised local rules have already been drafted and submitted to the Rules and Forms Committee of the court.  New rules are expected to come into effect in January 2015.

Under the pilot program, the parties can request the assistance of a discovery facilitator who can be selected from the panel maintained by the court. The panel is comprised of active private attorneys practicing civil litigation and in good standing with at least 10 years of experience, or retired judges. Applicants  must have a working knowledge of the California Discovery Act. One hour of preparation time and the first two hours of the session with the facilitator are free.  Facilitation may take place before the filing of a discovery motion or while the motion is pending, but no later than 15 calendar days before the scheduled hearing date. To participate, parties are required to complete a “Stipulation to Participate in Discovery Facilitation Pilot Program” posted on the court’s website.

Good-faith participation in discovery facilitation before filing a discovery motion with the court will  satisfy the “meet and confer” requirements of CCP § 2016.040. While participating in discovery facilitation will not automatically extend the 45-day deadline to file a motion to compel further discovery response, parties may use the stipulation to toll the 45-day deadline until an agreed-upon date.

Often the involvement of the discovery facilitator resolves the dispute, and sometimes settles the entire case. The parties will then file a stipulation for the full or partial resolution of the matter.  In the event the parties are unable to resolve the discovery dispute with the facilitator, any previously scheduled hearing on a pending motion shall proceed as planned, or either party may file a discovery motion prior to the 45-day deadline or the stipulated alternative deadline.

Regardless of the outcome of the discovery facilitation conference, the facilitator shall file a report with the court and serve it on all parties. The opinion is confidential and is not published on DomainWeb. In the event of a full resolution, the report shall include a statement indicating the dispute was resolved. In the event of a partial resolution or no resolution, the report shall contain a brief summary of the dispute and contentions of the parties, any legal or factual analysis made by the discovery facilitator in connection with facilitator’s role in attempting to resolve the dispute, and a statement indicating whether moving and/or opposing parties or counsel of record met and conferred in good faith.

In light of the expected court-wide expansion of the Discovery Facilitation Program, we encourage you to learn more about this program and to apply to become a facilitator on the court’s panel.

MEETING THE DEMAND

The expansion of the Discovery Facilitation Program to all civil direct calendar departments starting in early 2015 will increase the demand for discovery facilitators on the panel maintained by the court. To meet the anticipated demand, the court seeks experienced, currently practicing litigators to serve as discovery facilitators.

Criteria for facilitators:

1. Currently an active civil litigator with:
a. 10 years of civil litigation practice.
b. Active California State Bar membership in good standing.
c. Working knowledge of the California Discovery Act.
OR
2. A retired judge.

Under the current rules, facilitators donate up to one hour of preparation time and up to two hours of free facilitation services. Subsequent time is billed at agreed-upon rates.

If you have questions concerning the court’s Discovery Facilitation Program or about joining the facilitator panel, please email Jason Stein, ADR program administrator, at adrprogram@alameda.courts.ca.gov.

This article originally appeared in the Fall 2014 Edition of the ACBA Trial Practice Section Newsletter.

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