By Brian Esler and John Ruhl

The judges of the King County Superior Court have approved for public comment a set of proposals to refine the civil discovery process in King County. As further explained below, the proposed rule changes amend LR 26 and 33 to place limits on written discovery and depositions. The complete proposed rule changes are available online at the Superior Court’s website, www.metrokc.gov/kcsc. This article explains the genesis and impact of these proposed changes. Joint Effort by Bench and Bar

In the fall of 2003, King County Superior Court Presiding Judge Richard Eadie requested KCBA’s Judiciary and the Courts Committee to examine possible ways in which the Superior Court could improve the handling of its civil caseload. Judge Eadie urged that the work be conducted as a joint bench-bar effort. After a number of meetings, the Committee decided to work on proposals to streamline the civil discovery process, with the goal of lowering the costs (in terms of time, money and disputes) for all involved.

The 2003-2004 Judiciary and the Courts Committee comprised members of the bench (including former Judge Robert Alsdorf, Judge Sharon Armstrong, Civil Presiding Judge James Doerty, former Judge Terry Lukens and Judge Douglass North), as well as numerous practitioners from a diverse variety of practice areas.

Research conducted by Committee members, and summarized below, showed that Washington is almost unique among Western states in having no presumptive limits on civil discovery practice, and that local jurisdictions (both within the state, and in other states) have successfully implemented discovery reforms.

The Committee also heard comments from both the plaintiff and defense bar that endless rounds of written discovery, needless objections to proper discovery and multiple-day depositions were unnecessarily driving up the costs of trying and resolving cases in King County.

In June 2004, after many months of hard work, frequent meetings and compromises, the Committee presented proposals to KCBA’s Board of Trustees to: 1) place a presumptive cap on the number of written discovery requests that could be propounded and limits on depositions in civil cases; 2) make available optional sets of court-approved pattern 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.

In August 2004, after making a few changes to the Committee’s proposals, the Board voted unanimously to approve the proposals for consideration by the King County Superior Court. In September 2004, the Court’s Local Rules Committee, chaired by Judge Helen Halpert, took up the proposals. After making a few more changes, the Court’s Committee submitted those proposals to the King County Superior Court judiciary as a whole. On January 25, 2005, the Superior Court Judges voted to approve the proposals and publish them for public comment.

Proposal for Limits on Discovery Requests and Depositions
One Judiciary and the Courts subcommittee focused 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, Colorado, Florida, Illinois, Indiana, Louisiana, Minnesota, Montana, Ohio, Oklahoma, Oregon, Pennsylvania, and Texas. The Federal Courts have placed limits on written discovery requests and depositions for several years. See table. Locally, 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 occur 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.

As now proposed by the Superior Court, written discovery and deposition practice in King County would be modified as follows:

Depositions: A party may take no more than 10 depositions. One of those depositions may take place over two days. All other depositions are limited to one day. Each day of a witness’ deposition cannot exceed seven hours.

Interrogatories: Except in cases utilizing court-approved pattern interrogatories (explained below), parties are limited to 40 interrogatories, including subparts. Each subpart counts as a separate interrogatory.

Requests for Admissions: Parties are generally limited to 25 requests for admissions. However, requests that seek only to authenticate documents are not included in that limit.

Proposal for Pattern Interrogatories
A second Judiciary and the Courts subcommittee examined the possible benefits of making available optional sets of “pattern interrogatories,” which are interrogatories that have been pre-approved for use by the court.

Pattern interrogatories are utilized in a number of other states. Arizona has adopted pattern interrogatories for use in medical malpractice, personal injury, contract, and domestic relations litigation. California has adopted such interrogatories for use in employment, small claims, general civil, unlawful detainer, and family law litigation. Illinois has adopted pattern interrogatories for use in motor vehicle, matrimonial, and medical malpractice litigation. The trial courts in Bucks County, Pennsylvania have adopted pattern interrogatories for use in personal injury and product liability cases.

Locally, Washington’s courts of limited jurisdiction include something similar to pattern discovery requests (CRLJ 26), which identifies certain specific questions and subject areas that may be covered by written discovery requests. Such standardized discovery has also been used successfully in King County asbestos litigation for many years

Courts in other states have adopted pattern interrogatories because they: 1) require little effort to propound; 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 is reasonably discoverable; 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.

Proposed LR 33 would incorporate pattern interrogatories into King County civil practice. Although the subcommittee examining pattern interrogatories proposed a limited general set of interrogatories to get the ball rolling, the Court prefers to have lawyers who work in discrete practice areas draft their own sets of pattern interrogatories, which can then be approved by it. Hence, no pattern interrogatories have been approved for use yet.

As currently proposed, if pattern interrogatories are used, the parties would be limited to 15 non-pattern interrogatories, but the total of pattern and non-pattern interrogatories could exceed the 40 interrogatory limit otherwise applicable. Such pattern interrogatories would need to be served separately from any non-pattern interrogatories, although there is no requirement that the entire set of pattern interrogatories be used in every case. Parties can vary any pattern set to fit the particular facts of a case, so long as the interrogatories remain in substance identical to the court-approved set.

Varying and Enforcing the Limitations
Recognizing that one size does not fit all, the Court has left litigants room to depart from these limitations by agreement or court order. Parties may increase or decrease any of the limitations by a written stipulation meeting the requirements of CR 2(a), which does not need to be filed with the court. If the parties do not agree to exceed these limits, the party seeking departure may file a motion to submit additional discovery pursuant to LR 7(b), after complying with the conference requirements of LR 37. Any proposed order to exceed the limits “shall include details of what additional discovery is required.”

For purposes of these limitations, the proposed rules define “party” as “all parties with a commonality of interests.”

Moreover, if a party exceeds the written discovery limits absent a court order or stipulation, the party receiving the non-conforming discovery requests is required “to respond only to those requests, in numerical order, that comply” with the rule’s numerical limitation. No motion for a protective order is required, but the responding party must indicate in its responses that it is not answering those requests because they exceed the rule’s limit.

Similarly, if a party is served with a notice of deposition in excess of the limits, it must inform in writing the party serving the notice that it will not be attending the deposition as soon as possible and at least 24 hours prior to the scheduled deposition. Notice may be provided by fax or e-mail if the parties have previously agreed to receive notice in that manner, or if the objecting party has already given telephonic notification.

Early Mediation Pilot Project
Finally, the Superior Court also expects to institute a pilot project experimenting with early mediation of civil cases. Initially, that project will be limited only to civil cases assigned to certain judges. If the project results in earlier settlements and lower costs to litigants, the Court will consider requiring early mediation on a court-wide basis.

Comments, Next Steps and Adoption
The Court is accepting comments on these local rule changes until April 15, 2005. Comments should be sent to Barbara Miner, Clerk of the Superior Court, 516 Third Avenue, Room E609, Seattle, Washington 98104, or by e-mail to lrcomments@metrokc.gov. If adopted, these rule changes will become effective September 1, 2005.

Additionally, the Judiciary and the Courts Committee will be meeting to discuss these rule changes, to propose official comments to be forwarded to the KCBA board, and to begin organizing groups interested in drafting pattern interrogatories for discrete practice areas.

One subcommittee has already formed to create pattern family law interrogatories, and the Committee welcomes other proposals for practice sets. The Committee meets at the KCBA offices over the noon hour on the fourth Tuesday of every month. Its next meeting will be on February 22.

Download streamlining table that summarizes selected court rules from some other jurisdictions that limit interrogatories and/or depositions in civil cases.