BLS Discovery Pilot Project to Take on Electronic Discovery

by Lee Gesmer on December 8, 2009

Guest post by Gesmer Updegrove attorney Nancy Cremins.

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On December 1, 2009, the Massachusetts Superior Court announced the implementation of a Discovery Pilot Project in the Superior Court’s Business Litigation Session (BLS). A link to the press release announcement is here, and the text of the Project here.

The BLS Discovery Pilot Project will be implemented on January 4, 2010 and was developed as the result of a joint effort of the BLS judges and the BLS Advisory Committee, in an effort to address the increasing burden and cost of civil pretrial discovery, particularly electronic discovery.

The BLS Pilot Project incorporates some of the principles set forth in the March 2009 Final Report of the American College of Trial Lawyers Task Force on Discovery and the Institute for Advancement of the American Legal System, which (no surprise) found the civil justice system “in serious need of repair.”

The guiding principal of the BLS Pilot Project is to tie the scope of discovery to the magnitude of the claims at issue. The BLS judges will work with the parties to determine the scope and timing of permitted pre-trial discovery, taking into consideration the needs of the case, the amount in controversy, the parties’ respective resources, and the complexity and importance of the issues at stake.

In a move similar to the “automatic disclosure” that has been in effect in the federal court system for many years, each party participating in the BLS Pilot Project will be expected to produce at the outset of the case “all reasonable available non-privileged, non-work product documents and things that may be used to support that party’s claims, counterclaims or defenses.” After the initial production, the parties and the BLS judges will consider other pre-trial discovery methods, including numerical and time limitations and limiting the persons from whom discovery may be sought.

With respect to electronic discovery, the scope of such discovery will be governed by “the nature and scope of the case, relevance, importance to the court’s adjudication, expenses and burdens.” If the parties are unable to agree, the BLS judges will conduct an electronic discovery hearing, to address the scope of allowable proportional electronic discovery and allocation of its cost.

Chief Justice Rouse states that the Pilot Project will be in effect initially from January through December of 2010. Participants in the BLS Pilot Project will be asked to provide feedback so that data may be gathered and analyzed. Chief Justice Rouse states that the Pilot Project’s efficacy will then be evaluated and refined for future use.

Whether the BLS Pilot Project will have the desired affect of streamlining and reducing costs associated with the discovery process is yet to be determined, but kudos to the Massachusetts Superior Court and the BLS for at least making an attempt to fix the burdensome and expensive discovery process which, in its current state, often makes resolving a case on the merits cost prohibitive.

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