Draft Civil/Family Discovery DCM Plan Additions

CIVIL/FAMILY1 DISCOVERY DCM PLAN ADDITIONS Draft approved by A.A.Co.Cir.Ct. Bench on 11/16/05, subject to revision after public comment period Introductory comment: "Everyone complains about the weather, but no one does anything about it." So it has been with discovery disputes. Court of Appeals Judge Lynne Battaglia, as chair of the Court Commission on Professionalism, reports that the biggest source of dissatisfaction among Maryland attorneys is discovery disputes, particularly in family law. A.A.Co. Circuit Court judges also have recognized for many years that discovery disputes cause problems and delays in preparation, litigation and settlement of cases. We actively have solicited attorneys’ comments, researched and discussed the issues since 2003. The Bench recently approved a plan, seeking to resolve discovery problems to the greatest extent possible by actively applying the best practices approved in the Maryland Rules and case law. Printed below are: 1) a plain English summary of the draft plan and 2) the DCM provisions to implement the plan. Attorneys are invited to send suggestions for improvements to this plan to Judge Philip Caroom, as Bench liaison, either by mail, fax (410-263-5750), or email   This e-mail address is being protected from spam bots, you need JavaScript enabled to view it  on or before January 16. The Bench finally will review the plan, in light of attorneys’ input, at a Bench Meeting on January 25, 2006. We hope that implementation of the plan will begin during February and March 2006. The Bench does not expect that all attorneys will recognize the Court’s new expectations immediately, or that all discovery problems will disappear instantly. But, as with the 1998 adoption of the scheduling conference system, we expect significant changes and noticeable improvements within a few months. We ask all attorneys to join in and to help eliminate discovery problems as best we can. CIVIL/FAMILY DISCOVERY DCM PLAN ADDITIONS I. Plain English summary 1.   Prevention of discovery problems: The Court will actively manage discovery– especially, its scheduling– as part of DCM plans. It will encourage uniformity and efficiency in resolving discovery problems. This may include: a) implementing Rule 2-504.1 discovery requirements in orders for scheduling conferences2, so as to reduce excessive discovery requests before they begin; b) reminders by Masters at scheduling conferences as to early consultation and prompt commencement of discovery; (Masters, as incentive, may give docket priority at scheduling conferences to cases in which discovery plans and other agreements have been reached) c) scheduling conference continuances, if needed for compliance with 1.a), with warnings or actual sanctions per Rule 2-508 (e)3; d) encouragement of parties’ stipulation to accept email or faxes for discovery and "good faith" communications in lieu of mailing to the extent possible4, effectively adding many extra days to the discovery period by eliminating mail lag times; e) possible email or other reminders from the court to counsel or parties as to scheduling order & discovery obligations; and f) possible informal or phone conferences by chambers judges as to discovery disputes before issuing confirmatory written orders or setting discovery sanction hearings. 2.  "Standard" periods for discovery The Court will set a "standard" period5 for completion of discovery after a scheduling conference for different types of cases, e.g., 4 months for standard family law cases, 6 months for standard civil cases. These standard periods may be extended or shortened a) if parties reach an agreed discovery schedule which approved by the court, or b) if unusually simple or complex cases merit different periods. 3.  Promptness in dealing with discovery disputes To encourage prompt resolution of discovery disputes, the Court shall: a) facilitate telephone conferences with chambers judges and other good faith efforts to resolve discovery disputes at the earliest possible times, as well as providing written confirmation such efforts and resulting stipulations in court file memoranda or orders; b) work with the Clerk of Court and courthouse personnel towards prompt delivery of discovery matters to the chambers judge; c) require counsel to comply with Rule 2-432 format as to motions to compel and responses, as applicable, supplying an appropriate proposed order; d) alert counsel to expect timely consideration of discovery matters and pursue this, if it does not occur; and e) if agreements and orders to compel do not resolve disputes, the Court promptly shall rule or set any needed discovery sanction hearings within a reasonable time before pretrial conference or other pending hearing. 4.   Sanctions for noncompliance with discovery At a pretrial/settlement conference, the Court sua sponte may issue a show cause order as to possible sanctions, if it appears that one or both parties have disregarded scheduling order obligations. Such a show cause may be set for a brief hearing at the time of the next pretrial/conference, or at an earlier date, if compliance previously has not occurred. Sanctions may include default in civil and family law matters which are not child-related. In child-related matters, sanctions may include court costs, counsel fees, adverse inferences, continuances, and civil fines, as appropriate upon consideration of the child’s best interests. 5.  Fair and consistent discovery decisions To encourage uniformity of decisions as to discovery disputes, the Court shall: a) train judges and masters as to the DCM discovery plan provisions, form orders and best practices; b) educate members judges, masters and attorneys as to applicable Rules, case law and new developments, so as to obtain consistent decisions and to reduce the number of contested discovery matters. To facilitate fair discovery sanctions, the Court shall require counsel to submit itemized records as to attorney time and expenses relating to the dispute. If a violation is disclosed only at trial, the Court may provide a brief, separate hearing for production of such records, if monetary sanction is sought. Additions are highlighted in yellow 6II. DCM additions as to discovery 2.2.2 Discovery Deadlines & Amendments After discussion with counsel, the master or judge will set discovery deadlines and schedule subsequent event dates. By Order for Scheduling Conference and by oral suggestion of the Judge or Master, counsel shall be encouraged: to confer before the conference as to discovery, as well as possible settlement of issues, unless there is an allegation of domestic violence between pro se parties, or other good cause, to reach agreements as to schedule and other arrangements for discovery, if possible, and to initiate discovery promptly so as to complete it - including filing of any discovery motions- prior to the date of the pre-trial/settlement conference. Priority on the scheduling conference docket may be granted to cases in which there are substantial agreements as to discovery schedules and other stipulations. Discovery schedules shall not exceed four (4) months in standard family law cases and six (6) months in standard civil cases, except in unusual circumstances or by agreement approved by the Court. ... The dates set shall be firm dates and shall not be modified except by Order of the Civil DCM Judge. 2.2.4. Motions In order to make the Pretrial Conference a meaningful event, all motions –including discovery motions– must be filed and resolved prior to the Pretrial Conference. The master or judge at the scheduling conference shall establish deadlines for the filing of motions including discovery motions. 2.2.6 Computer Generated Evidence requiring advance notice The Scheduling Order shall also provide a deadline for the notice required by any party who intends to use video depositions per Rule 2-416, computer generated evidence as required by Maryland per Maryland Rule 2-504.3, or summary exhibits per Rule 5-1006. 4.  PRETRIAL CONFERENCE ...All discovery must be completed by the time established in the scheduling order, in advance of the Pretrial Conference, and all experts must have been identified in order to make the settlement discussions meaningful. Objections to insufficient discovery responses may be deemed waived, unless an appropriate discovery motion has been filed promptly, unless the insufficient response could not reasonably have been recognized, or in family law matters, unless waiver is inappropriate in the child’s best interests. ... Counsel must be prepared at the time of the Pretrial Conference to meaningfully discuss settlement and any other issues required for the preparation of the Pretrial Conference order. If a Pretrial Conference must be continued due to the failure of a party or counsel to comply with discovery, or other Scheduling Order requirements, the Court sanctions pursuant to Rule 2-508(E). The Court may also schedule a separate hearing with the next Pretrial Conference or on another date to assess appropriate sanction. 7A. DISCOVERY The Court will actively manage discovery to reduce discovery problems, to increase efficiency and uniformity in resolving such problems. Discovery management by the Court may include: A) appropriate language from Rule 2-504.1 in orders for Scheduling Conferences; B) reminders by Master or Judge at Scheduling Conference as to prompt commencement of discovery; C) Scheduling Conference continuance, if needed, with warning or actual sanctions per Rule 2-508(E)7; D) encouragement of parties’ stipulation to accept email or faxes for discovery and "good faith" communications in lieu of mailing to the extent possible8; E) email or other reminders from the Court to counsel or parties as to Scheduling Order & discovery obligations; and F) informal or phone conferences by chambers Judges as to discovery disputes before issuing orders or setting discovery sanction hearings. 7.1 DISCOVERY SCHEDULE The court will set a "standard" period for discovery after a Scheduling Conference for different types of cases, e.g., 4 months for a standard family law case and 6 months for a standard civil case. These standard periods may be extended or shortened A) if parties reach an agreed discovery schedule which is approved by the Court, or B) if unusually simple or complex cases merit different periods. (Standard check box options to be added to Scheduling Order forms.) Once a discovery schedule has been established in a Scheduling Order, an extension of time may be approved only by the DCM Judge if the extension requires a postponement of the Pretrial/Settlement Conference date. 7.2 DISCOVERY CONFERENCES To encourage prompt resolution of discovery disputes, the Court shall facilitate telephone conferences and other good faith efforts to resolve discovery disputes at the earliest possible times, as well as providing written confirmation of such efforts and resulting stipulations in court file memoranda or orders. 7.3. DISCOVERY MOTIONS Discovery motions and responses must comply with Rule 2-432 format, as applicable, with a good faith certificate and proposed order attached. Discovery motions shall be forwarded promptly to the chambers Judge for consideration, consistent with section 7.1 and 7.2 of this DCM Plan. 7.4 DISCOVERY HEARINGS A) The Court ordinarily will not grant a hearing as to any motion to compel discovery. If a motion to compel is granted, the time for compliance will not exceed 18 days. If compliance is not received, the discovering party must seek further relief promptly per Maryland Rule 2-433 or the Court may find that further relief has been waived. B) The Court shall promptly set discovery sanctions hearings, if agreements and orders to compel do not resolve disputes. The Court shall seek to resolve discovery disputes within a reasonable time before a pending Pretrial Conference. C) If only a financial sanction remains for consideration, the Court may defer this until the next scheduled court event or merits hearing, absent indication of financial hardship to the discovering party. 7.5 DISCOVERY SANCTIONS A. Show cause orders. At Pretrial/Settlement Conferences, the Court upon motion or sua sponte may issue a show cause order as to possible sanctions, if it appears that a party has disregarded the Scheduling Order obligations. Such show cause Hearings may be set for brief hearings at the time of the next Pretrial Conference, or at an earlier date, if compliance has not occurred. B. Sanctions - generally. Discovery sanctions will be granted as appropriate to alleviate actual prejudice, for expenses incurred by discovering party, or for deliberate noncompliance with court orders. Discovery sanctions may be denied if a motion is not timely filed, within a reasonable time after notice of the violation, and in proper format, including a good faith certificate per Maryland Rule 2-431. C. Sanctions - support required. To facilitate fair discovery sanctions, the Court shall require counsel to submit itemized records as to attorney time and expenses relating to the dispute. If violation is disclosed only at trial, the Court may provide a brief, separate hearing for production of such records, if monetary sanction is sought. D. Sanctions - choice of remedies. Sanctions may include dismissal of a claim or defense, exclusion of evidence, fair compensation as to documented expenses or other appropriate relief consistent with Maryland law. In matters which relate to children or other parties with legal disabilities, sanctions may be limited to Court costs, counsel fees, adverse inferences and civil fines. However, in its discretion, the Court may impose any appropriate sanction. For omitted discovery, the Court may direct the discovering party to obtain information directly by subpoena duces tecum, if desired, subject to later Court Order for reimbursement of costs. Supplement as to Family Law DCM Plan only: 10. SANCTIONS The Circuit Court for Anne Arundel County will take appropriate steps to assure compliance with all Scheduling Orders and other orders issued in accordance with this DCM plan. ...A show cause hearing will then be held before the DCM judge or the Administrative Judge as to why sanctions should not be imposed on the offending person. However, this plan does not preclude any Judge from considering a motion to compel or for sanctions as to discovery. ...Monetary or other sanctions may be imposed on any attorney or party who fails to comply with an Order of this Court issued in accordance with the DCM plan. Such sanctions may include the dismissal or granting of the relief requested as justice requires. However, such ultimate sanctions shall not be granted unless the Court determines this is consistent with the child’s best interest in light of reasonably current evidence or matters of record. Footnotes 1  Similar additions will be made both to the family and the civil DCM plans. But, certain provisions will differ due to family law precedents and Judicial Council case time standards. Differences will include a longer "standard" time for discovery in civil (6 months) and a precondition on family law sanctions that the "best interest of the child" be considered.2  Under that Rule, parties may be directed "to confer in person or by telephone [at least 10 days before the scheduling conference] to attempt to reach agreements or narrow... disagree- ments" on issues, plans and schedules for discovery. [Emphasis added.] Masters shall emphasize this obligation to confer before scheduling conferences with the goal of agreed discovery schedules or stipulations.3  If parties disregard this requirement to confer before the scheduling conference, the Court may assess costs and expenses for continuance of the scheduling conference, per Rule 2-508 (e). (If there is an allegation of domestic violence by a pro se party, or other good cause, the Court may not compel this initial consultation.) Counsel alternately may be permitted an opportunity to confer as to such items in the hallway before a scheduling conference is continued or sanction is granted. 4  Scheduling order will include check box for possible stipulation with email addresses to be inserted and qualification that "attachments, which cannot be scanned reasonably & attached, shall be faxed or delivered in non-electronic form." Copies of emails shall be accepted by the Court as the basis for a Rule 2-431 good faith certificate. Counsel who elect this option, of course, will be required to provide updates as to any changes of email address or fax numbers, as they do for office addresses. 5  Standard check box options will be added to scheduling order forms. Court computers may be programmed automatically to insert standard dates in forms.6  The sections references here relate to the Civil DCM plan as the current Family DCM plan is almost silent as to discovery matters. However, similar provisions now will be inserted in both plans. (See footnote 1, above.)7  Counsel may be permitted an opportunity to confer as to such items in the hallway before a scheduling conference is continued, per Rule 2-508, with possible assessment of costs for continuance. 8  Scheduling order might include check box for stipulation with email addresses to be inserted and qualification that "attachments, which cannot be scanned reasonably & attached, shall be faxed or delivered in non-electronic form." Copies of emails shall be accepted by the court with an attached certificate of service from counsel.

 

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