Suggested New CR 3.1 and Suggested Amendments to CR 16, 26, 77

Washington State Bar Association

1325 4th Ave, Suite 600

Seattle WA 98101-2539

Kyle Sciuchetti, President

Washington State Bar Association

1325 4th Avenue, Suite 600

Seattle, WA 98101-2539

Dan Bridges, past WSBA Treasurer and Governor

Civil Litigation Rules Revision Work Group Chair

3131 Western Avenue, Suite 410

Seattle, WA 98121

Thea Jennings, Disciplinary Program Manager

Washington State Bar Association

1325 4th Avenue, Suite 600

Seattle, WA 98101-2539

The proponent recommends adoption of suggested amendments to the Superior Court Civil Rules (CR) with a focus on modifying discovery rules to decrease the cost of litigation.

In 2011, the WSBA Board of Governors (Board) chartered a task force titled the Task Force on the Escalating Cost of Civil Litigation (ECCL Task Force). The Board charged the ECCL Task Force with analyzing civil litigation processes in Washington courts and to make recommendations that would improve access and reduce costs.1 The ECCL Task Force studied the issues for several years and submitted recommendations to the Board in June 2015.2 In its final report, the ECCL Task Force offered a variety of rule revision options that the Task Force expected would reduce barriers to access or costs or both.3

At its June 2016 meeting, the Board voted on each of the ECCL Task Force recommended options, approving some and rejecting others. In July 2016, the Board issued its Report on the Recommendations of the Escalating Costs of Civil Litigation Task Force, which explained its decision on each option.4 Among the Board-approved options were provisions for initial case schedules, individual judicial case assignments, mandatory discovery conferences, mandatory initial disclosures, cooperation as a guiding principle, pretrial conferences, and mandatory early alternative dispute resolution.5

On November 18, 2016, in the wake of its vote on the ECCL Task Force recommendations, the Board chartered the Civil Litigation Rules Drafting (Rules Drafting) Task Force. The purpose of the Rules Drafting Task Force was to draft proposed civil rules to implement the ECCL options ratified by the Board.6 The Rules Drafting Task Force was further charged with soliciting and receiving input from stakeholders, including lawyers, judges, and other interested persons or entities, on its suggested amendments.

Over the next fifteen months, the Rules Drafting Task Force met, drafted, and received input from stakeholders. Although some stakeholder input reflected disagreement with decisions previously made by the Board, the drafting work of the Task Force focused on implementing the options ratified by the Board in June 2016.

After a first reading in July 2018, the Rules Drafting Task Force submitted its suggested rule amendments for approval at the Board's September 27-28, 2018 meeting.7

At that meeting, citing concern that there had been insufficient stakeholder input on the Task Force recommendations, the Board elected to postpone action on the draft amendments and to convene a work group to gather additional stakeholder input and report back to the Board.

In September 2019, the Board chartered a second drafting entity, the Civil Litigation Rules Revision (Rules Revision) Work Group, to solicit and incorporate additional stakeholder input, with a particular emphasis on stakeholders with civil litigation experience and sophistication. The Board tasked the Rules Revision Work Group with revising, as appropriate, the Task Force's suggested amendments to reflect the additional stakeholder input.

At the Board's September 17-18, 2020 meeting, the Rules Revision Work Group submitted revised suggested amendments.8 The Board unanimously approved the suggested amendments. With the exception of one CR 26 subsection regarding privilege logs, the proposed amendments were endorsed by all stakeholders.

The following observations explain the purpose of the suggested rule amendments. In addition, to provide context about development of the suggested amendments, Section III identifies and explains a number of potential suggested amendments that ultimately were not approved by the Board for submission as part of the suggested rule set.

New CR 3.1: Adopting a statewide case schedule. Suggested CR 3.1 is a new rule that would impose a statewide initial case schedule. Suggested CR 3.1(a) incorporates some aspects of the King County and Pierce County local rules regarding case schedules, including requiring disclosure of expert witnesses and a discovery deadline. Suggested CR 3.1(a) provides for case-schedule deadlines stated in terms of weeks before the trial date, which would be set for 52 weeks after the action is commenced. Suggested sections (b)-(d) of CR 3.1 are procedural, dictating the timing of case schedule deadlines, service requirements, and the availability of modifications to the case schedule. Suggested sections (e)-(f) of CR 3.1 provide for exemptions from the initial case-schedule requirement for specific types of actions; in other matters, exemptions may be granted on motion or the court's initiative. CR 3.1(g) sets forth a party's ongoing obligation to timely respond to discovery requests.

CR 16: Adopting new statewide pretrial procedures. It is widely agreed that pretrial scheduling orders used in King and Pierce counties, as well as in the federal district courts, achieve significant time savings at trial. Accordingly, suggested new CR 16(a) would require that parties submit a joint pretrial report to the court. Under the suggested rule, the pretrial report must include a summary of the case, agreed material facts, the material issues in dispute, a list of expert witnesses, an exhibit index, the estimated length of trial, suggestions for shortening the trial, and a statement regarding whether alternative dispute resolution would be useful. Suggested amendments to current CR 16(a) (renumbered as CR 16(b)) modify and add to the topics the trial judge may consider at a pretrial conference. Existing CR 16(b) is consequently renumbered as CR 16(c) with additional clarifying revisions.

CR 26 (b)(5): Curbing abuse of case schedule deadlines. Many observers agree that, regrettably, parties in many instances manipulate the discovery process by refusing to respond to discovery requests until the case-schedule deadline. Such conduct impedes discovery, subverting the purpose of case schedules to create a bright-line cutoff for completion of the discovery process. The rules should not enable a party flatly to refuse to respond to appropriate discovery requests until the case-schedule deadline. Thus, suggested amendments to CR 26 (b)(5) make it clear that the tactic is inappropriate, enabling trial courts to deter abusive discovery conduct. See also suggested CR 3.1(g).

CR 26(e): Continuing duty to supplement discovery responses. Existing CR 26(e) defines the extent to which a party has a duty to supplement responses previously given in response to discovery requests. The rule specifies that a party has no continuing duty to supplement responses, but then defines a number of exceptions to the general rule where supplementation is required under specified circumstances. Under the current system, to obtain supplementation a party often must either expressly demand it or propound new discovery specifically requesting supplementation. Suggested amendments to CR 26(e) would impose a general, continuing duty to supplement all discovery responses, expediting the discovery process, making more discoverable information available sooner, and better ensuring full disclosure before trial.

CR 26(e): Clarifying the form of supplements. Often when a party supplements a discovery response, the supplementing party includes the totality of the prior discovery response, including all the unchanged responses. This places an unnecessary burden on the responding party to search out and find supplemental information, an expenditure of time that serves no useful purpose. An additional suggested amendment to CR 26(e) specifies that supplemental responses shall include only the supplemental information.

CR 26(g): Prohibiting general objections. Parties routinely make so-called general objections. At present, the Civil Rules require each objection to interrogatories and requests for production be answered specifically. CR 33(a) ("the reasons" for objection to an interrogatory must be stated in lieu of an answer); CR 34 (b)(3)(B) (party must state a "specific objection" to a request for production of documents, including the reasons). Despite these specificity requirements, because the rules do not expressly prohibit general objections, some parties assert that they are appropriate. A recipient of a general objection is typically obliged to wrangle with the objection proponent over the validity of the objection. This temporarily thwarts the requesting party's ability to obtain complete responses, delays the discovery process, and can lead to an increase in discovery motions.

For these reasons, an express and overarching prohibition on the use of general objections is warranted. Federal case law rejects the use of general objections. See, e.g., Hager v. Graham, 267 F.R.D. 486, 492 (N.D.W. Va. 2010) ("General objections to discovery, without more, do not satisfy the burden of the responding party under the [FRCP] to justify objections to discovery because they cannot be applied with sufficient specificity to enable courts to evaluate their merits."); Burlington N. & Santa Fe Ry. Co. v. U.S. Dist. Ct. of the Dist. of Mont., 408 F.3d 1142, 1149 (9th Cir. 2005) ("Blanket refusals inserted in to a response … are insufficient to assert a privilege."); Chubb Integrated Sys., Ltd. v. Nat'l Bank of Wash., 103 F.R.D. 52, 58 (D.D.C. 1984) ("[A] general objection [does not] fulfill [a party's] burden to explain its objections."). The suggested amendment to CR 26(g) makes it clear that general objections are inappropriate.

CR 26(g): Requiring a privilege log. Washington case law has made clear that when otherwise discoverable material is withheld based on an assertion of privilege, a "privilege log" should be provided. Parties infrequently provide a privilege log unless it is requested, and it takes additional time to prepare and obtain a previously unprovided privilege log, sometimes weeks or months, delaying the discovery process. In some instances, the parties are in dispute about whether a privilege log must be provided and, if so, what its content should be, requiring judicial intervention and further delaying the discovery process. Accordingly, an additional suggested amendment to CR 26(g) requires a privilege log as a part of any response in which documents or information are being withheld on grounds of privilege. Codifying the necessity of a privilege log will expedite discovery and deter non-meritorious assertions of privilege. The language for the suggested amendment to CR 26(g) is taken almost verbatim from Rental Housing Ass'n of Puget Sound v. City of Des Moines, 165 Wn.2d 525, 538, 199 P.3d 393 (2009).

CR 77(i): Assigning a judge. Assignment of a specific judge to a specific case creates efficiencies through the development of ongoing knowledge and experience developed by the assigned judge in a particular case. This can save substantial time otherwise needed to educate the judge about the case when the parties come before the court on motions and certainly at trial. A suggested amendment to CR 77(i) requires the assignment of a specific judge to every case, but provides for alternatives in the event that pre-assignment is not feasible in a particular jurisdiction.

The Board declined to endorse several ECCL Task Force recommendations on grounds that they would have unintended consequences or would not effectively promote efficiencies and cost reductions. What follows is a brief explanation of those proposals.

Duty of cooperation. To further the overarching goal of cost reduction through cooperation among parties, the Rules Drafting Task Force proposed a number of amendments, including language in CR 1 requiring parties to reasonably cooperate with one another and the court, as well as a provision in CR 11 authorizing imposition of sanctions for failure to reasonably cooperate. The term cooperation was not defined. These amendments were not approved for submission because of the absence of a workable definition of cooperation, the sufficiency of existing remedies for noncooperation, and the potential for the cost of litigation to increase owing to an increase in disputes about whether a party sufficiently cooperated. Despite the importance of cooperation, it was concluded that its codification as a rule would not decrease litigation costs and would likely generate unintended and undesirable outcomes.

Mandatory early mediation. The Rules Drafting Task Force included a new mandatory early mediation requirement and procedures, which would have imposed an early-mediation deadline of eight months before trial, subject to modification by motion. These amendments were not approved for submission because in the great majority of cases parties would likely seek to extend the early-mediation deadline, which would only serve to increase the cost of litigation. In addition, it was concluded that early mediation could result in unjust results in some cases, such as premature settlements or failed early mediation efforts that generate the need for additional costly mediations.

Mandatory discovery disclosures. To implement the concept of mandatory discovery disclosures, the Rules Drafting Task Force drafted amendments to CR 26 that would have required mandatory initial disclosures of certain information and documents by a deadline in the initial case schedule. These amendments were not approved for submission because the "one size fits all" approach fails to account for the specific subject matter of a case, because many practitioners consider initial disclosure deadlines to be only a "check-the-box" requirement that actually increases the cost of litigation, because practitioners believe the federal model has not achieved the goal of streamlining discovery as intended, and because even in jurisdictions that require initial disclosure, parties essentially engage in the same quantum of formal discovery.

A hearing is not requested.

Expedited consideration is not requested.

(a) Hearing Matters Considered. By order, or on the motion of any party, the court may in its discretion direct the attorneys for the parties to appear before it for a conference to consider:

(b)Pretrial Conference. Each attorney with principal responsibility for trying the case, and each unrepresented party, shall attend any scheduled pretrial conference. At a pretrial conference, the court may consider and take appropriate action on the following matters:

(c) Pretrial Order. The court shall makeenter an order which recitesreciting the following:

(1) the action taken at the conference,;

(2) the amendments allowed to the pleadings,; and

(3) the parties' agreements made by the parties as toon any of the matters considered,. The pretrial orderand which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action,. However, the trial court should freely amend the order at trial absent prejudice demonstrated by the amendment.unless modified at the trial to prevent manifest injustice. The court in its discretion may establish by rule a pretrial calendar on which actions may be placed for consideration as above provided and may either confine the calendar to jury actions or to nonjury actions or extend it to all actions.

(a) [Unchanged.]

(b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) - (4) [Unchanged.]

(5) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subsection (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A)(i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, and to state such other information about the expert as may be discoverable under these rules. A case schedule deadline to disclose experts does not excuse a party timely responding to expert discovery. Delayed disclosure of an expert constitutes a violation of CR 37 if the trial court finds the responding party delayed based on a case schedule deadline. (ii) Unless these rules impose an earlier deadline, and in no event later than the deadline for primary or rebuttal expert witness disclosures imposed by a case schedule or court order, each party shall identify each person whom that party expects to call as a primary or rebuttal expert witness at trial, state the subject matter on which the expert is expected to testify, state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

(B) A party may, subject to the provisions of this rule and of rules 30 and 31, depose each person whom any other party expects to call as an expert witness at trial.

(CB) A party may discover facts known or opinions held by an expert who is not expected to be called as a witness at trial, only as provided in rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(DC) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subsections (b)(5)(B)(A)(ii) and (b)(5)(C)(B) of this rule; and (ii) with respect to discovery obtained under subsection (b)(5)(B)(A)(ii) of this rule the court may require, and with respect to discovery obtained under subsection (b)(5)(C)(B) of this rule the court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

(6) - (8) [Unchanged.]

(c) - (d) [Unchanged.]

(e) Supplementation of Responses. A party who has responded to a request for discovery with a response has a duty to seasonably supplement or correct that response with information thereafter acquired. Supplementation or correction shall set forth only the information being supplemented or corrected.that was complete when made is under no duty to supplement the response to include information thereafter acquired, except as follows:

(4) Failure to seasonably supplement or correct in accordance with this rule will subject the party to such terms and conditions as the trial court may deem appropriate.

(f) [Unchanged.]

(g) Signing of Discovery Requests, Responses, and Objections. Every request for discovery or response or objection thereto made by a party represented partyby an attorney shall be signed by at least one attorney of record in the attorney's individual name., whose address shall be stated. A non-represented party who is not represented by an attorney shall sign the request, response, or objection and state the party's address. Objections shall be in response to the specific request objected to. General objections shall not be made. No objection based on privilege shall be made without identifying with specificity all matters the objecting party contends are subject to the privilege including the type of item, the number of pages, and unless otherwise protected the author and recipient or if protected, other information sufficiently identifying the item without disclosing protected content. The signature of the attorney or party constitutes a certification that the attorney or the party has read the request, response, or objection, and that to the best of their knowledge, information, and belief formed after a reasonable inquiry it is:

(1) – (3) [Unchanged.]

(h) - (j) [Unchanged.]

(a) - (h) [Unchanged.]

(j) - (n) [Unchanged.]