As addressed in part 1, many litigants are voluntarily turning to Discovery Referees to help parties resolve their disputes in a cost-effective and timely manner, given the significant COVID delays that are plaguing our Bay Area judicial system. Even in an involuntary appointment made on a court’s motion, a Referee can be a blessing in disguise.
Part 2 of this article addresses the many benefits of using private adjudication in the discovery arena:
Appointing a Discovery Referee is time-efficient
The courts are currently faced with an unprecedented backlog. Old hearings have been continued, and new hearings are set far in the future. Though delay has always been a shortcoming of the court system, it has never been worse, and almost nothing can be done about it.
By appointing a personalized Discovery Referee, you can minimize these case delays. A Discovery Referee will generally set a hearing very quickly, almost always within one month, and often much sooner if requested by the parties. Moreover, Referees in California Superior Court cases are required to issue decisions within twenty days after the hearing. California Code of Civil Procedure § 643(a), (c). The parties can also stipulate to an even shorter turn-around time with your Referee’s consent, further maximizing your client’s cost savings.
Discovery Referees are more flexible
A Discovery Referee will work with the attorneys’ and clients’ schedules. We have all been there when a court scheduled a hearing smack-dab in the middle of our cherished vacation time. This is much less likely to happen in front of a Special Master. And if it does, a Referee will generally be more willing to entertain and grant requests for alternate hearing dates.
Moreover, a Referee will typically allow for zoom or telephonic hearings – which means you and your client don’t have to pay for travel time. Several courts have reverted back to in-person hearings, and if all parties need to travel to the forum for hearings, it can be quite costly.
A Referee will likely have more discovery expertise
You cannot choose your judge. But you can stipulate to a specific Referee with extensive experience in eDiscovery, IOT and search terms, for example. Even in cases where you are unable to agree to a specific candidate with opposing counsel, the chances of someone with significant discovery experience being appointed are very high, as a court generally affords great weight to this factor when ultimately selecting among the proposed candidates.
The court system is built on a rigid structure that allows for little or no flexibility in briefing schedules, relief afforded, and available compromises. A Discovery Referee, on the other hand, offers a degree of informality when supervising the process.
A Discovery Referee can be contacted at any time
Availability is another key benefit of using a Discovery Referee. Certain issues arise during the discovery process. If you go through the conventional court system to resolve this issue, you will need to exhaust the meet and confer process, notice a motion, brief a motion, attend a hearing, and wait for a decision. There are many discovery issues – for example, instructions not to answer during a deposition – that require immediate attention. While the regular court process can eventually correct improper instructions and compel a second deposition, this is generally highly inefficient for all sides involved (not to mention the person being deposed). Even many routine document production questions are best handled promptly so clients have certainty on what to collect and preserve, so they do not need to engage in the same duplicative efforts multiple times. There is always significant lag time when addressing a public judicial officer. Parties to a suit can easily contact the Discovery Referee, however, to seek prompt resolution. Many Discovery Referees, for example, are willing to be “on call” during key depositions. Direct and near immediate access to a decision-maker can be priceless.
A Discovery Referee allows for greater autonomy and personal attention
Clients and lawyers always have goals that they seek to achieve in litigation, arbitration and discovery more particularly. The court system is built on a rigid structure that allows for little or no flexibility in briefing schedules, relief afforded, and available compromises. A Discovery Referee, on the other hand, offers a degree of informality when supervising the process. This degree of informality makes the Discovery Referee a more flexible option compared to the court system.
Many Discovery Referees will tailor their procedures and practices to the specific needs of your case, and allow both sides to have input on the process. For example, some courts issues tentative decisions on discovery matters, and others don’t; if both sides stipulate that this procedure is best suited to help them prepare for key issues pre-hearing, most Discovery Referees are willing to provide tentative rulings. Within the confines of the applicable codes, you can choose your own adventure.
A Discovery Referee also has the luxury to afford your case more personal attention and time than the public system can provide. The raw data speaks volumes. For example, a judge in the Northern District of California had an average of 955 pending cases for the year ending March 31, 2021. State court appears to be even worse, even before the COVID backlog. In San Francisco Superior Court, for example, for the 2019 fiscal year (reported in 2020), there were 1778 filings per judicial position, with the statewide average a whopping 2960 filings per judicial officer. The sheer magnitude of the public caseload makes it is very difficult to receive personalized attention, if any, from most courts.
A Discovery Referee can generally foster more cooperation
A good Discovery Referee will help foster new lines of communication between opposing counsel, which can frequently break down under the tedium and stress naturally imposed by extensive discovery disputes. Many parties are surprised to find that they share common goals despite having a live dispute. For example, one side complains that they do not want to use an overly broad search term as it will result in costly-over production of irrelevant material. The receiving party also does not want to unnecessarily review hundreds of irrelevant documents just to find the few that are key to the case; especially given the fact that the more irrelevant documents are produced, the more likely those few documents will effectively be buried in a haystack. By working through these issues in a cooperative fashion, a Discovery Referee can negotiate a happy medium that ends up addressing both parties’ concerns, and allows for flexibility to make sure your needle (if it exists) is produced, as opposed to a bunch of hay.
This increased cooperation in discovery, in turn, improves the overall chances of settlement in the case, and also makes it easier to work with opposing counsel on other matters, from family-emergency continuance requests to joint exhibit lists.
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In conclusion, a good Referee will save both you and your client time and money. While some may initially balk at the notion of paying a private judge for decisions and assistance, many attorneys have reported significant overall cost savings when using a Referee.
While no current statistics exist on average savings between the private and public system, the time constraints alone are telling. In California superior court, a judge must issue a decision within 90 days of the hearing; in California federal court, there is no hard and fast deadline. Discovery Referees, however, must issue decisions within 20 days in California superior court, and you can stipulate to an even shorter period. Moreover, many Discovery Referees utilize truncated briefing procedures which massively reduce attorney time (and consequently, fees). This, in turn, enables a lawyer to focus on the underlying substantive legal and factual disputes of the case, as opposed to being bogged down in the quagmire of the discovery process. Not to mention the unquantifiable savings that can be achieved with a Referee who can quickly broker mutually acceptable agreements between parties. A good Referee is worth their weight in gold, and many attorneys leave the reference process being pleasantly surprised by the speed and efficiency of the process. COVID delays will likely affect civil dockets for many more months (if not years) to come. If you need quick decisions on discovery, now is definitely the time to seriously consider a Discovery Referee.
ABOUT THE AUTHOR:
Diana Kruze is an award-winning mediator, arbitrator and discovery referee with Judicate West. As a former judicial officer, litigation partner at Morrison Foerster, and mother of three young children, Diana is not your average neutral. She has successfully resolved complex patent cases and small family disputes alike. With her breadth of experience and contagious optimism, Diana utilizes diplomacy, thorough preparation, and effective case management to bridge new channels and finesse through barriers to resolution. Learn more at: www.adrbydiana.com