By John Ruhl and Jennifer Shaw
The King County Bar Association’s Judiciary and Courts Committee is studying proposals to change King County Superior Court Local Rules to: (1) place a presumptive cap on the number of written discovery requests that could be propounded in civil cases; (2) make available optional sets of pre-approved pattern discovery requests which, if used, would not count towards the presumptive cap on discovery requests; and (3) create a presumptive deadline for mediation or other ADR proceedings within the first several months after a civil case is filed.
If the Committee recommends any of the proposals to the KCBA Board of Trustees, then the Board may recommend them to the King County Superior Court for further consideration and possible implementation after notice to the members of the bar.
Joint Participation by Members of Bench and Bar
In the fall of 2003, King County Superior Court Presiding Judge Richard Eadie requested the Committee to examine possible ways in which the Superior Court could streamline the handling of its civil caseload. Judge Eadie urged that the work be conducted as a joint bench-bar effort.
The Committee currently comprises approximately 30 active members, including Judge Robert Alsdorf, Judge Sharon Armstrong, Civil Presiding Judge James Doerty, Judge Terry Lukens and Judge Douglass North.
Each of the proposals is being researched in depth by a separate subcommittee. The proposals being considered by each subcommittee are summarized below.
Proposal for Limits on Discovery Requests and Depositions
One subcommittee is focusing on the question of whether limits should be placed upon written discovery requests and depositions in civil cases.
Various limits on written discovery and depositions have been adopted in a number of states, including Alaska, Arizona, California, Florida, Indiana, Louisiana, Minnesota, Montana, Ohio, Oklahoma, Oregon and Texas and federal courts have placed limits on written discovery requests and depositions for several years (See table below).
The Pierce County Superior Court has set limits of 25 interrogatories in “expedited” cases, 35 interrogatories in “standard” and “complex” cases and 100 interrogatories in dissolution cases. See PCLR 1(h).
Virtually all jurisdictions allow for additional discovery requests upon a showing of good cause.
Supporters of discovery limitations point out that interrogatories are often propounded in excessive numbers, are time consuming to draft, even more time consuming to answer, and rarely used after they have been answered. Likewise, many courts and litigators contend that too many depositions are taken in many civil cases. Placing presumptive limits on these discovery tools is seen as one way of reducing litigation costs and streamlining the pretrial preparation process.
Proposal for Pattern Discovery
A second subcommittee is studying the possible benefits of making available optional sets of “pattern discovery.” Pattern discovery requests are interrogatories and/or requests for production that have been pre-approved for use by the court. They are utilized in a number of states, including California, Illinois, Pennsylvania and Florida. Standardized discovery has also been used successfully in King County asbestos litigation for many years.
The discovery rules of Washington’s courts of limited jurisdiction include something very similar to pattern discovery requests (See CRLJ 26, which identifies certain specific questions and subject areas that may be covered by written discovery requests.).
Courts in states that have adopted pattern discovery requests maintain that pattern discovery requests are beneficial because they: (1) require little effort to draft; (2) are virtually immune to objections by opposing parties; (3) establish certainty that the discovery requests will be answered in full; (4) promote a consensus among the bench and the bar as to what basic information reasonably should be covered by such discovery requests; (5) force parties to consider early on what information will need to be provided to opposing parties; and (6) make more palatable any corresponding numeric limitation on non-pattern discovery requests.
The subcommittee currently is considering whether to propose several sets of pattern discovery requests for use in general commercial litigation, personal injury cases, employment law cases and family law cases; as well as possibly “relief-centric” requests that would be tailored to damages or other relief requested.
Early Mediation Proposal
A third subcommittee is contemplating whether to propose a change to KCLR 4(e)(2) that would shift the current deadline for engaging in alternate dispute resolution (“ADR”) proceedings from
“T-4” (i.e., four weeks before the trial date) to a presumptive deadline within the first six to nine months after the case filing date. Under the proposal being studied, any party could move the court for an order postponing the ADR deadline for good cause.
Proponents contend that early mediation: (1) encourages the speedy settlement of many cases that otherwise would not be settled until after many months of expensive and possibly unnecessary discovery; (2) reduces the number of cases that are settled just before trial, after the parties have incurred the considerable expense of last-minute motions and other pretrial activities; and (3) releases the court from having to devote inordinate amounts of effort dealing with such cases just before trial.
Participation Welcomed
Persons interested in participating on any of the subcommittees may contact Jeffrey Tilden at (206) 467-6477 (discovery limits subcommittee); Brian Esler at (206) 622-8484 (pattern discovery subcommittee); or Peter Ehrlichman at (206) 903-8825 (early mediation subcommittee).
The next meeting of the subcommittees will be on Friday, March 12, 2004, at noon, at the offices of the subcommittee chairs.
John Ruhl serves as the chair of the KCBA Judiciary and Courts Committee. He is a member of the Seattle office of Eisenhower & Carlson, PLLC.
Jennifer Shaw serves as the vice-chair of the KCBA Judiciary and Courts Committee. She is a partner in the firm of Aoki & Sakamoto in Seattle.
