Alexandria J. Crouthamel
Recently, the Delaware Court of Chancery decided to use a discovery facilitator in the very early stages of litigation to help move the process along. Often times this person is a special master who is a lawyer that specializes in the area of law being litigated. But other times, as seen more recently, this person is a non-lawyer.
The first use of the coined term “discovery facilitator” was seen in the case of Partner Investments, LP v. Theranos, Inc. In this case, Vice Chancellor Laster suggested to the parties that they consider appointing a special master to assist with discovery due to the volume and complexity of the discovery. However, in the case of In Re Cellular Partnership Litigation, Vice Chancellor Laster appointed, rather than suggested, the use of a discovery facilitator due to the lack of responsibility of the parties to facilitate their own discovery. The discovery facilitator in this matter was not a lawyer, but it was noted that the person had a special expertise in the “valuation issues and extensive experience with technology companies.” The discovery facilitator was to “use that expertise to assess the requests which are the subject of [the] motion, evaluate AT&T’s responses, and determine what information AT&T should produce.” This discovery facilitator, according to the vice chancellor’s order, had the authority to schedule all the proceedings that would take place before himself, perform interviews, conduct hearings, and take testimony, just as a vice chancellor would. Furthermore, the court expected the discovery facilitator to provide it with a recommendation after he obtained this information. This case was the first time within the Delaware courts that a non-lawyer was appointed to be in this position of a discovery facilitator.
For comparison, in 2013, the Superior Court in Contra Costa County, California, decided to implement a Discovery Facilitator Program, one which may offer an example for Delaware courts to follow. This specific county decided to implement the program due to the death of a Commissioner and overload of discovery motions. Unless ordered otherwise, this program requires all parties conducting litigation within the county courts—two probate departments and four civil departments—to participate in this program prior to filing any motions to compel discovery. The parties present their discovery motion to the discovery facilitator, a volunteer attorney, who evaluates the issues and then provides resolution recommendations to the parties. This is not an order, but simply a recommendation on how to resolve the discovery issues. If the parties disagree with the recommendations or do not agree to resolve the matter, the parties must attach the recommendations by the discovery facilitator to the motion which they file so the court can consider them in its ruling.
The Superior Court in Contra Costa County, California, set out rules and procedures for complying with this mandatory program. After a case comes about, the party who would like to compel discovery must serve a request for a discovery facilitator to the Alternative Dispute Resolution (ADR) office and the opposing party within 45 days. Within 10 calendar days of receiving the request, the ADR office will serve an assignment notification of a discovery facilitator from an approved list, and each side is allowed one peremptory challenge of the assigned discovery facilitator. A hearing is then held within 30 calendar days of the approval of the discovery facilitator by both sides. Following the hearing, if the parties are able to come to a resolution, they will enter into a written agreement and the discovery facilitator’s role will be terminated. However, if the parties are unable to come to an agreement, then the discovery facilitator will issue a recommendation within 10 days that will be attached to all subsequent discovery motions by the parties. Other California county courts use similar programs as the one described herein, including Alameda Superior Court, Marin Superior Court, San Francisco Superior Court, and Sonoma Superior Court.
Should Delaware follow in California’s footsteps? If so, should a non-lawyer be allowed to serve as a discovery facilitator? In a small number of cases coming out of the Delaware Court of Chancery, Vice Chancellor Laster has suggested or appointed discovery facilitators with complex or non-compliant discovery requests or motions. If Delaware implemented a discovery facilitator program similar to that of California, it would leave the courts with substantially less discovery requests. Due to the fact that Delaware has a substantial amount of cases involving civil litigation and corporate law, it is likely the Delaware courts have an overwhelming amount of complex discovery motions and requests. Implementing a policy as seen above, would certainly reduce the amount of motions and requests the Delaware courts receive. The purpose of these discovery facilitators would be fulfilled because the Delaware courts could focus their attention elsewhere, while streamlining the ligation process.
Following in California’s footsteps would allow opportunities for Delaware lawyers to volunteer to serve as discovery facilitators. However, implementing such a program could be problematic, as California has substantially more lawyers than Delaware, due to its population size and the corresponding size of its bar. Due to Delaware’s small bar, finding enough lawyers in Delaware to volunteer could prove to be a major obstacle. In the situation where there are few or no volunteers, the court could appoint a discovery facilitator, but then the court may bear the burden of the cost. An alternative Delaware courts can consider is appointing non-lawyers to facilitate discovery, a step which California’s program did not include, and one which the Court of Chancery has used already, at least in one case.
A solution for incentivizing more lawyers to become discovery facilitators could be to pay them for the hearing. The parties could share the cost or the requesting party could bear the burden for paying the cost. Although this could incentivize lawyers to be discovery facilitators, it may also cause the requesting party to carefully consider whether discovery is truly needed and due to the cost, deter the party from asking for discovery when determined to be unnecessary. Some may argue that the court should bear the burden of the cost if it requires the parties use a discovery facilitator. On other hand, if Delaware opted to implement an optional discovery facilitator program as optional, it could benefit parties who are close to a solution resolve the matter without paying litigation costs, while parties who know they would never be able to come to a solution through the program could continue on with regular litigation procedures.
Delaware courts should consider following in the footsteps of states like California, who require parties to use discovery facilitators to streamline the ligation process; the Delaware Court of Chancery has already started to appoint or suggest discovery facilitators for the same reason. Currently, there is no rule in Delaware stating who can or should be a discovery facilitator, but, in one instance, the Court of Chancery has appointed a non-lawyer to be a discovery facilitator, unlike the California rule which only allows lawyers in that role. An issue to resolve is the question of who will bear the cost for discovery facilitators, whether the program requires them or makes it optional for parties to use them in discovery matters. Overall, courts are always looking for ways to streamline the litigation process and using discovery facilitators may do just that.
Alexandria is a 3L regular division student at Widener University Delaware Law School. She is Co-President of Alternative Dispute Resolution Society, senior staff of the Delaware Journal of Corporate Law, Phi Alpha Delta Mock trial team competitor, and 3L SBA class representative. After graduation next year, Alexandria plans to start her practice in criminal law.