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Bar News - August 17, 2012


Proportional Automatic Discovery Project: Initial Results Encouraging

By:

On the eve of its major expansion into the stateís largest county, the Proportional Automatic Disclosure (PAD) Pilot Project is no longer in its infancy, but itís not grown-up yet either.

The PAD rules will take effect in both districts of Hillsborough County Superior Court on Oct. 1, expanding from their initial deployment in Strafford and Carroll counties in 2010.

Superior Court Judge Kenneth Brown, who oversaw its implementation in Strafford County and is now sitting in Manchester, says the new approach to civil litigation has shown encouraging signs of living up to its promise of speeding up the process and perhaps leading to earlier settlements.

"PAD seems to be working well," said Brown, who moved from Strafford to Hillsborough North last year. "I noted that the number of discovery motions appeared to be lower, and when I was there, we had no issues of non-compliance. We werenít having problems with the adequacy of disclosure." Some of the real benefits of PAD, however, havenít been seen because so few cases started under its rules have made it to trial.

He acknowledges that assessment is difficult since there have been fewer civil cases being litigated due to budget constrictions on court schedules which have disproportionately affected civil cases. "The real impact we will be able to measure three to four years from now," he said. The pilot counties will be compared against Grafton and Belknap counties, which will continue to operate until the existing litigation rules.

Moving into Hillsborough County will pose challenges with more lawyers and judges involved and more complex cases being heard there, Brown said. He said limitations in the PAD rules on the amount of discovery will be adapted to the complexity of the case.

"The Court is sympathetic to the complex case. The number of documents to be produced, the number of witnesses, and the number of interrogatories can be expanded if necessary," he said.

While the civil docket has been affected by under-staffed courts (there are currently three vacancies in the superior court statewide), civil litigants are getting their day in court, Brown said. Room on the docket is being created in Hillsborough North by judges, prosecutors and defense attorneys working harder to move criminal cases along. And non-incarcerated defendantsí cases are sometimes put off so that time-sensitive or long-delayed civil cases can be heard.

Brown said that in Strafford County, the most frequent mistakes made by practitioners when the PAD rules first went into effect were failing to provide substantive information in the initial pleadings (now known as "complaints"). But plaintiffs and defense attorneys operated in good faith in making disclosures and he said he did not have to impose any sanctions.

His successor in Strafford County, Judge John Lewis, agreed that the PAD project remains in its early stages. "I have done trials under the PAD Pilot, and have not noticed much difference in how they proceed as compared to before," he said. "The lawyers often work on the basis of their personal relationships and deal with discovery that way."

"I notice that some lawyers are looking for more fact allegations in initial pleadings and there has been some motion practice in that regard," Lewis added.

Julie Howard, Clerk of Strafford County Superior Court, has helped develop a number of resources to help judges and practitioners get used to the new rules.

Brown, who concentrated in complex medical malpractice cases as an attorney before his appointment to the bench in 2007, said if the PAD rules had come along when he was a lawyer, he would have welcomed them. "I would have been an advocate of them. Both sides get to see what is in dispute and the disclosures can bring the parties to a settlement sooner."

PAD Resources

The Judicial Branch website has a special set of pages devoted to the PAD Pilot Project. Resources include a timeline for litigation under PAD, an 11-page "PAD Primer" for attorneys and paralegals, forms, and a memo addressing filings that are exceptions to the PAD rules.

NHBA•CLE offers a three-hour online program (orig. prog. date 6/16/10) "PAD: Pilot Rules on Proportional Discovery/Automatic Disclosure."

NHLAP: A confidential Independent Resource

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