Discovery Facilitator Program, by Judge Clare Maier

by Judge Clare Maier

On March 23, 2020, Chief Justice Cantil-Sakauye issued her first of hundreds of emergency orders on behalf of California trial courts related to the State of California’s COVID-19 shutdown. By April 30, 2022 most of those orders had been rescinded. Despite the return to “normalcy,” the myriad repercussions from the shutdown, delays to trials, discovery, and unavailability of lawyers and witnesses have continued to have an enduring effect on litigation. On the bright side, our courtrooms are now up and running at 110% – and many of the backlogged cases are being tried. Most weeks, jurors are summoned and sworn, cases tried and verdicts returned. This is very satisfying for litigants to finally be given their day in court. Hopefully, we will continue to chip away at this backlog.

Further, although much of the delayed discovery is finally proceeding, the need to accelerate some discovery has increased the workloads of already busy attorneys. All of this increased activity has likely created more havoc and pressure in an already hectic lawyer’s life. However, there is hope in the horizon!

Our bench and bar have worked cooperatively for many years and share a goal to streamline case management and maintain access to a fair and impartial justice system for all. Our Discovery Facilitator Program and Settlement Mentor Program are instrumental to achieving these goals. These programs are effective at reducing the cost of litigation and, as well, assisting parties to arrive at mutually satisfying settlements of their cases. Now, more than ever, we encourage attorneys to familiarize themselves with these programs, use them, and, if time permits, volunteer to serve as a discovery facilitator and/or a settlement mentor.

Even before our courtroom closures, our court realized that we needed to help parties resolve their cases and avoid protracted, costly discovery disputes. In 2013, the Discovery Facilitator Program (“DFP”) was instituted. Rule 3.300, et seq. of the Local Rules of Court, outlines the requirements and expectations for use of the DFP.

The purpose of the DFP is to allow parties and counsel to resolve discovery disputes in a manner that is more cost-effective, efficient, and participant-controlled than a standard discovery motion, and also avoids the risk of sanctions inherent in the formal discovery motion practice.

The DFP is mandatory, with the following exemptions:

(a) Cases in which there has been no response to discovery requests. Motions to compel under Code of Civil Procedure, Sections 2030.290(b) or 2031.300(b) shall be filed directly with the court.

(b) Cases in which trial is less than sixty (60) days away.

(c) Motions necessitated solely by a third party’s refusal to comply with a subpoena.

(d) Those disputes specifically exempted by the trial judge.

For any exception, the moving party must include “Exempt from Discovery Facilitator Program” on the Notice of Motion.

Discovery facilitators are experienced attorneys who volunteer their time for up to four hours. If the dispute is expected to take more than four hours, the discovery facilitator may decline your case. If there are additional disputes, the discovery facilitator must be paid and the agreement regarding compensation satisfactorily arranged by parties.

Besides reviewing the Local Rules, the court encourages you to access a helpful web page on our Superior Court of California – Contra Costa County website: https:// www.cc-courts.org/civil/discoveryfacilitator-program.aspx. Here you will find all of the forms you need to initiate and complete the DFP process including the Discovery Facilitator Application (ADR-601), a list of approved volunteers, etc. If you use the services of a discovery facilitator and have feedback for the court, we provide a survey (ADR603) for suggestions as to how to improve the program.

The DFP would not exist without the invaluable work of the lawyers from the bar who volunteer as discovery facilitators. Long-time CCCBA member and CCCBA Officer David Pearson has volunteered as a discovery facilitator since the program’s inception. Mr. Pearson reports that he initially volunteered because he wanted “to give back to the community and assist the court to reduce the volume of simple disputes.” Mr. Pearson comments that “the discovery facilitator program allows me to take matters I have the time for as it is only a small investment of time – usually two or three hours per matter accepted.” After over eight years of working as a discovery facilitator, Mr. Pearson reports that he has benefitted from his work as a discovery facilitator because “acting as a discovery facilitator has made me a much better practitioner seeing the disputes that arise and how counsel could have avoided them.” Mr. Pearson encourages attorneys to consider volunteering for the program. He further comments that the program provides “a third-party perspective without the emotional involvement” that may arise in his own cases.

Alternative dispute resolution (ADR) refers to the different ways people can resolve disputes without a trial. Common ADR processes include mediation, arbitration, and neutral evaluation. These processes are generally confidential, less formal, and less stressful than traditional court proceedings. ADR often saves money and speeds settlement. In mediation, parties play an important role in resolving their own disputes. This often results in creative solutions, longer-lasting outcomes, greater satisfaction, and improved relationships. The Contra Costa Superior Court encourages parties involved in lawsuits to use ADR to resolve their disputes without trial.

Our court offers parties access to free mediation and other ADR services in small claims, unlawful detainer, harassment, as well as limited and unlimited civil and commercial law disputes. All ADR panel members must meet the training, education, and experience requirements for the mediation panels on which they sit as settlement mentors.

Our settlement mentors give of their time and talents to improve access to the court. Mr. Gary Sanders (who is also a member of the CCCBA) has volunteered as a settlement mentor with the court for years and has found it very gratifying. He enjoys “encouraging the parties to come to a compromised settlement and assisting pro per litigants who have not typically learned to negotiate dispute resolutions in a judicial setting.” Mr. Sanders also values this work as an opportunity to “give back” to the legal community. Mr. Sanders notes that his work as a settlement mentor has allowed him to “quickly identify opportunities to settle” which has improved his performance as a mediator. He has further remarked that his private mediation caseload has increased due to attorneys on the assigned cases who later hire him for private mediations. Mr. Sanders encourages other civil attorneys interested in growing their mediation practice to volunteer for the program.

Along with Mr. Pearson and Mr. Sanders, the court encourages other experienced attorneys to consider applying to be on our panels of discovery facilitators and settlement mentors. For those of you currently volunteering, we thank you on behalf of the parties with cases before the court, and the public whose access to their justice system you have supported. All of the judges in the civil department are grateful for your service.

Judge Clare Maier is assigned to a civil department at the Contra Costa County Superior Court.