A call to reform 

  Glenn Hamer

  October 19th, 2016               

The Arizona Supreme Court’s Committee on Civil Justice Reform, convened by Chief Justice Scott Bales earlier this year, just completed its work taking a good hard look at the current state of Arizona’s civil justice system. Of interest to the state’s business community was its focus on making the system more affordable, more efficient, and more responsive to the needs of court consumers.

Along with a few other business representatives, I was honored to have been among the members appointed to the Committee, expertly chaired by Don Bivens of Snell & Wilmer. Among the diverse group charged with this important work were numerous litigators, judges, as well as public and private lawyers from a wide array of practice areas and backgrounds. The Committee was specifically charged with the task of developing recommendations, including rule amendments or pilot projects, to reduce the cost and time required to resolve civil cases in Arizona’s superior courts.

Among the Committee’s key recommendation are proposed modifications to Rule 37 and Rule 26 to reduce the costs of pretrial discovery, and Rule 45.2 to lessen the burdens associated with the preservation of electronically stored information. An additional Rule 45 adjustment would protect third parties (not those involved in the litigation) from burdensome subpoenas requiring that they produce documents to the actual litigants. Under the new rule, absent good cause, a subpoena may not seek materials otherwise already available from the parties to the case. If a non-party is required to produce documents, the party seeking discovery must bear the cost. This should be a major savings and would serve as a breakthrough on discovery costs.

Another important proposed reform to the discovery process is language found in Rule 26 that gives parties to a transaction the ability to pre-determine the scope of discovery that will be permitted in the event of a dispute. As long as any such agreement is mutually and freely negotiated, it may permissibly limit the amount of discovery to be conducted, preserving significant resources for both sides.

The proposed rules also include a deterrent to frivolous and potentially damaging lawsuits by way of a strengthened Rule 11 providing for mandatory sanctions where appropriate. Under the new rule, pleadings must comply with a heightened standard requiring that all claims, defenses and other legal contentions be warranted either by existing law, or by a colorable argument for revising existing or establishing new law. 

 Here’s the bottom line of this Bottom Line: These recommendations, if implemented, would reduce the costs and burdens for business.

 The Committee’s proposals will be presented to the Court Leadership Conference and Arizona Judicial Council later this month. If all goes well, we could see these changes implemented by next August. The Arizona Chamber’s newly formed Institute for Law and Business – created to improve the civil justice system and represent the business community in the legal system – will proactively stay on top of the Committee’s work to ensure that these measures are implemented.

 

 Glenn Hamer is the president and CEO of the Arizona Chamber of Commerce and Industry