WHY USE A DISCOVERY REFEREE?
Richard E. Best
best@justice.com
Discovery of Electronic Data
DISCOVERY CASE OUTLINES
http://CaliforniaDiscovery.findlaw.com
REFEREE CASE OUTLINE
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 party's 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
best@justice.com
ADR Services
415 772 0900
Suite 1100
450 Sansome Street
San Francisco, Ca. 94111
http://CaliforniaDiscovery.findlaw.com