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BLS Discovery Pilot Project to Take on Electronic Discovery

Guest post by Gesmer Updegrove attorney Nancy Cremins.


On December 1, 2009, the Massachusetts Superior Court announced the implementation of a Discovery Pilot Project in the Superior Court’s Business Litigation Session (BLS). A link to the press release announcement is here, and the text of the Project here.

The BLS Discovery Pilot Project will be implemented on January 4, 2010 and was developed as the result of a joint effort of the BLS judges and the BLS Advisory Committee, in an effort to address the increasing burden and cost of civil pretrial discovery, particularly electronic discovery.

The BLS Pilot Project incorporates some of the principles set forth in the March 2009 Final Report of the American College of Trial Lawyers Task Force on Discovery and the Institute for Advancement of the American Legal System, which (no surprise) found the civil justice system “in serious need of repair.”

The guiding principal of the BLS Pilot Project is to tie the scope of discovery to the magnitude of the claims at issue. The BLS judges will work with the parties to determine the scope and timing of permitted pre-trial discovery, taking into consideration the needs of the case, the amount in controversy, the parties’ respective resources, and the complexity and importance of the issues at stake.

In a move similar to the “automatic disclosure” that has been in effect in the federal court system for many years, each party participating in the BLS Pilot Project will be expected to produce at the outset of the case “all reasonable available non-privileged, non-work product documents and things that may be used to support that party’s claims, counterclaims or defenses.” After the initial production, the parties and the BLS judges will consider other pre-trial discovery methods, including numerical and time limitations and limiting the persons from whom discovery may be sought.

With respect to electronic discovery, the scope of such discovery will be governed by “the nature and scope of the case, relevance, importance to the court’s adjudication, expenses and burdens.” If the parties are unable to agree, the BLS judges will conduct an electronic discovery hearing, to address the scope of allowable proportional electronic discovery and allocation of its cost.

Chief Justice Rouse states that the Pilot Project will be in effect initially from January through December of 2010. Participants in the BLS Pilot Project will be asked to provide feedback so that data may be gathered and analyzed. Chief Justice Rouse states that the Pilot Project’s efficacy will then be evaluated and refined for future use.

Whether the BLS Pilot Project will have the desired affect of streamlining and reducing costs associated with the discovery process is yet to be determined, but kudos to the Massachusetts Superior Court and the BLS for at least making an attempt to fix the burdensome and expensive discovery process which, in its current state, often makes resolving a case on the merits cost prohibitive.

Administrative Office of the Federal Courts’ Annual Report – Your Tax Dollars Well Spent

Administrative Office of the Federal Courts’ Annual Report – Your Tax Dollars Well Spent

There are lies, damn lies and statistics. Mark Twain


Recession/depression/readjustment, it matters not, our federal government is committed to keeping statistics. And, it spends a great deal of time, money and effort tracking every statistic imaginable associated with the federal courts. This labor is performed by the Administrative Office of the Federal Courts, and it’s no small task. As far back as ten years ago the Admin Office had a budget of over $50 million (that was the only budget statistic I could find based on a quick search).

Each year the Office issues a detailed statistical report, and this year’s report is over 400 pages long. Most of this is mind-numbing tables and statistics. I suspect that very few people read beyond the summary contained in the first 40 pages, other than to pick out a statistic here and there. Here is a link to the report, but don’t download it unless you’re prepared for a 400 page pdf file almost 7 megabytes in size.

Here are a few statistics that jumped out at me, based on a quick review:

  • Nation-wide, a quarter of a million civil cases are filed in the federal district courts each year, give or take. And, roughly the same number are dismissed, so the number outstanding stays relatively constant from year-to-year. About three thousand cases are filed in the District of Massachusetts and the same number is pending.
    • Nation-wide, about 1,000 were antitrust suits and 9,000 are IP (3,000 patent, copyright, trademark each).
    • About 4400 civil cases went through trial nation-wide in 2008, median time through trial was about 32 months. In D. Mass. the numbers were 81 trials and 27 months.
    • Of the roughly 3,000 cases pending in D. Mass. only about 200, or a little over 6%, have been pending over 3 years.
    • In 2008, nation-wide, about 5,000 civil cases were completed through trial, and of that number about 60% were non-jury trials. In D. Mass the numbers were 126 civil trials, in roughly the same percentages. Of the 126 civil trials in D. Mass only 12 exceeded 10 days in length.
    • The longest civil trials in the nation were 39 days (non-jury trademark trial, D. N.J.) and airplane PI (jury trial, also D. N.J.).
    • 2% of cases pending in 2008 reached trial. However, around 5% of personal injury and employment cases reached trial. Most other categories were well under 2%.

Connecticut Supreme Court Briefs Online

Here’s a link to Connecticut Supreme Court Briefs Onlne, a WordPress blog managed by members of the Connecticut bar who attempt to post the briefs in every case that is argued before the Connecticut Supreme Court.  The site also posts a short description of the issue in each case, the decision (when it becomes available) and a video of argument before the Court (also when available).

It would be great if every state did this, and if there were a centralized site that provided access to each state (

Cameras in Judge Gertner’s Court?  Not Quite Yet

Cameras in Judge Gertner’s Court? Not Quite Yet

The Boston Globe reports that U.S. District Judge Nancy Gertner has stayed last week’s decision allowing a motion hearng in the Tenenbaum music downloading case to be “narrowcast” on the Internet, pending an appeal to the First Circuit by the RIAA.  Apparently, the RIAA feels strongly enough about this issue to ask for immediate appellate review, and Judge Gertner agreed to keep cameras out of court, at least for the moment.

My take? Cameras in the courtroom should be within the discretion of the judge, who exercises control over that courtroom, and the First Circuit should deny the RIAA’s appeal.  The more that the public sees what goes on in our federal courts, the better for our judicial system.