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Discovery Referees in Complex Litigation

Hon. Terry B. Friedman (Ret.)
Hon. Terry B. Friedman (Ret.)
JAMS Mediator, Arbitrator, Referee/Special Master, Hearing Officer

Published February 23, 2012

Today’s post comes from Hon. Terry B. Friedman (Ret.), an experienced mediator, arbitrator and discovery master who spent 15 years as a trial judge with the Los Angeles County Superior Court after serving as a member of the California State Assembly for eight years.

It’s no secret that California’s budget woes mean deep cuts to the state’s civil courts.

According to California’s Administrative Office of the Courts, there are currently 330 fewer judges than needed to manage the state’s current caseload, and obligations to fill criminal judgeships in Los Angeles will likely be met by shifting even more officers from the civil bench.

As a consequence, civil practitioners likely will face delays in trials and hearings, and an impact on discovery disputes in certain complex cases is inevitable.

This represents a crisis not only for judges, court staff and attorneys, but also for civil justice. Access to the judicial system is vital for a healthy democracy.

Fortunately, existing statutes allow for parties to work around some procedural roadblocks that tightened budgets can’t navigate.

Discovery references can help provide quicker resolution to discovery disputes when doing so in the courts would take up a large amount of time, such as when multiple motions must be considered or when the amount of documents to be reviewed would be severely time consuming.

California’s Civil Code of Procedure grants parties to a dispute some flexibility in deciding the referees and whether their opinions are binding or not.

With explicit consent from the parties, a judge can designate a general reference that is able to make binding determinations.

More common are special references, which a court or parties can appoint to make nonbinding recommendations “when it is necessary for the information of the court in a special proceeding,” according to California’s Civil Code of Procedure.

Parties are able to submit written objections to the appointment of referees for a number of reasons, including prior legal or personal relationships with the other party, an interest in or bias towarda certain outcome of a matter, or a lack of qualifications to be a referee.

There are other advantages in using referees, who can often devote more time to matters than can a trial judge. Of course, attorneys should keep in mind that, as in the courtroom, succinct arguments tend to be more successful.

Referees can also be more flexible in scheduling hearings either in a private office or telephonically, though this informality should not be an invitation to engage in improper ex parte communications.

How and when the crisis affecting the courts will end remains to be seen.

But for now, taking advantage of discovery referees can help alleviate the added time and expense associated with a constrained judicial system.


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