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Why use a discovery referee?
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Why use a discovery referee?
Posted: Aug 16 2004
Richard E. Best
Recent years have seen a strong trend toward private judging in general and
to private discovery judging in particular. Why would anyone use a private judge or
discovery referee when the government provides the service at virtually no cost ? For
lawyers with routine cases where form discovery works and the motions, if any, are
perfunctory, there is no need. For everyone else there are private judges.
NEEDS OF COURTS
Trial courts are busy and trial judges have many responsibilities with limited
time to discharge those responsibilities. They have long used special masters, referees,
mediators, arbitrators, etc as an essential adjunct to the resolution of disputes and most
place heavy emphasis on alternative dispute resolution. Discovery disputes that are
complicated, time consuming or require expertise are ideal for reference to private judges
either by stipulation of the parties or court order.
NEED FOR EXPERTISE
Many discovery disputes are routine and require no expertise; many are not.
Sometimes, the lawyer or judge does not even recognize the complexity initially.
Although the Civil Discovery Act of 1986 and the Federal Rules of Civil Procedure
provide lengthy and detailed rule books, there is a considerable body of case law on civil
discovery as reflected in the numerous treatises and publications on the subject. While
California law is patterned on the Federal Rules of Civil Procedure there are significant
differences. Often the major issues on discovery disputes involve privilege issues each of
which presents a separate body of legal issues, statutes, rules and case law.
More important than the legal rules are the factual nuances that affect their
application. Lawyers know that every securities fraud, medical malpractice or
construction case is not the same. Neither is every discovery motion. The expertise that
every lawyer uses to evaluate, accept and handle any case is based on a lifetime of
experience as well as a knowledge and understanding of the rules. The same is true in
evaluating and resolving many discovery disputes.
The emerging issues involving discovery of electronic data and related
claims of spoliation give rise to even greater needs for expertise in this area.
NEEDS OF LAWYERS AND LITIGANTS
Every lawyer tries to avoid discovery disputes but that is not always
possible. With limited time and unlimited demands on that time, trial judges are restricted
in the time they can devote to discovery matters; but litigants often need special attention
if only for a short time period or a particular problem. The needs will vary. The bottom
line is often the bottom line but in many cases money is no object. A private referee can
meet the special needs of the litigants and the case.
CASE MANAGEMENT:Some cases can benefit from early and ongoing case
management where the referee is thoroughly familiar with the facts and legal issues, the
objectives and needs for discovery, the past history of the litigation, the parties and
counsel. Other litigants may want to use referees as a cost effective and efficient
alternative to the normal court procedures but follow all the normal rules without
modification.
CONTINUITY AND CONSISTENCY: Having one person hearing all discovery disputes and being familiar with the case from beginning to end can provide a predictability that avoids unnecessary disputes and motions and a consistency that assures all parties or issues will receive the same treatment and result.
COST EFFICIENCY: Discovery motions can be extremely expensive and a discovery
referee can eliminate or greatly reduce that cost. A private discovery referee can control
costs and allocate those costs to the party responsible for abuses of the process. More
important, the private referee can facilitate the discovery process in an economic manner.
Counsel and the referee can write their own rules and should establish the ground rules if
this objective is important. The alternatives are unlimited: e.g. use of the telephone to
obtain either an advisory or binding ruling; consultation to determine what evidence is
required to resolve a discovery dispute or what discovery issue really needs to be briefed
for the referee rather than preparing for all contingencies; letter briefs or oral briefs;
supplemental briefs; telephonic, videoconference or email hearings; discussion or
mediation of discovery issues; detailed case management.
TIME EFFICIENCY: Even when a trial date is not imminent, time may be important or
even of the essence. Obtaining an order shortening time is itself a time consuming and
expensive project. Obtaining a calendar date may add delay even beyond the required
notice time. Complying with all the generic court rules may add expense and delay. Once
in court, an entire morning can be spent waiting for the matter to be called for hearing. If
the matter is complex a decision may not be forthcoming on the day of the hearing and
may have to await a minute order in due course plus a further delay to obtain a formal
order. The personal attention of a discovery referee can reduce or eliminate these delays
and still provide for adequate time to brief, argue and adjudicate the issues.
If problems are anticipated in a deposition the referee can be present or
available by telephone, Internet, videoconference or in person to make a decision
immediately on any issues or simply to facilitate the deposition process. If counsel feel
the issues are important and worthy of research and briefing, the resolution can be
postponed but still resolved without a continuance of the deposition. In extreme cases
involving major issues, large financial stakes, multiple and important depositions, etc. it
may be desirable to have a referee available and on site whenever and wherever needed.
Even routine matters may justify a referee. Some cases produce an
inordinate number of discovery disputes that need to be resolved by a neutral as quickly
as possible. A discovery referee can find the time to accommodate such needs. For
example and if appropriate, a discovery referee could set aside a day or two to resolve all
pending issues at one time.
In all cases a discovery referee can be available at the convenience of
counsel and the litigants: evenings, weekends, by telephone at any time, etc. A special
time and day can be set aside on a weekly or monthly basis to hear all matters.
QUALITY: The need for expertise is always present but demands of the case or issues
may vary and time and expense may also vary depending on those demands. The issues
and stakes may be of such importance that a detailed record and formal findings and
opinion are desired. At the other extreme, sometimes any objective and fair decision will
do. Counsel can advise the referee and adopt procedures to meet the needs of the issues.
A discovery referee can personally and immediately devote the time necessary to
thoroughly consider and determine the matter or, if unable to do so in accord with the
needs and time restraints of the parties, can so advise them.
FLEXIBILITY: Lawyers can write their own rules and can determine how they want
discovery and the discovery dispute resolution process to work.
IMPORTANCE OF DISCOVERY
Most cases are settled and do not go to trial but almost all involve discovery.
Discovery is often the bulk of the litigation expense and it often has serious or final
consequences. Aside from providing evidence and information necessary to evaluate and
prepare the case for mediation, arbitration, settlement, or trial , discovery sanctions often
result in judgments, determination of issues, or preclusion of evidence.
At the least, supervision by a referee can control costs and allocate those
costs to the party responsible for abuses of the process. More important, the private
referee can facilitate the discovery process in an economic manner and can assure that the
parties rights are respected and enforced. If discovery is worth doing it is worth doing
right. Part of that process is making sure the discovery process works and that parties get
what they deserve.
Richard E. Best
ADR Services
415 772 0900
Suite 1100
450 Sansome Street
San Francisco, Ca. 94111
http://CaliforniaDiscovery.findlaw.com
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