ARC Articles

How a Discovery Referee Helps Bring Home the "W"!

by: Judge Joyce Karlin Fahey, Ret.
ARC Discovery Referee, Mediator & Arbitrator

Most Judges would rather dig a ditch than serve as a Discovery Referee. If done in the traditional fashion, it is BORING and TEDIOUS for all! Practicing as a retired judge over the last 20 years, I’ve presided over hundreds of Discovery References, which is why my approach to discovery is anything but traditional. In fact, I’ve found using this approach often leads to a successful mediation. Following these steps you can weave through a discovery maze quickly and efficiently and prepare for settlement.

Without the crutch of boilerplate discovery pleadings, you will discover far more interesting and effective ways to uncover the information you need for litigation. First and foremost, shelve all boilerplate discovery motions. What purpose do they really serve other than to create billable hours? When is the last time you actually used a form interrogatory or request for admission in trial? And if you did, wasn’t that same information available elsewhere?

First Session
  • Bring your client to meet with the Discovery Referee and allow the Referee to learn your theory of the case from the Client directly.
  • Create a timeline and case plan, which will give the client a realistic projection of costs and the likelihood of settlement.
  • Create a case-specific list of categories of evidence you are seeking from the other party and provide that list to the Referee and opposing counsel.

Second Session
  • Include a court reporter that will transcribe the Referee’s rulings with regard to these discovery requests.
  • Avoid formal pleadings at this stage. An informal process is far more efficient and still provides the parties with all the protections of motions practice.
  • Prepares a proposed order for the Referee, based on the transcript.
  • Request a telephone conference with the Referee if there are objections to the proposed ruling.

Third Session
  • Schedule another session after the first set of documents is produced to determine what follow up is needed.
  • Target this meeting within two months of meeting the Referee for the first time.
  • Include the Parties and court reporter so that the Referee can question a party on the record about disputed claims of missing or non-existent documents.
This will not count against the time provided to depose the party but only as a vehicle to answer open questions about missing discovery.

Continued Sessions…
  • With respect to claims of privilege and privacy, have the Referee review the documents in question. At this point, the Referee knows as much as anyone else about the case and can quickly determine whether a privilege applies. This is far more cost effective than paying tens of thousands of dollars to a forensic technology consultant who charges more than a Referee and has to be brought up to speed about search terms and the like.
  • At this point in time, each side has enough evidence to depose critical witnesses. By allowing the Referee to preside over these depositions, a transcript is created without objections “for the record” and without arguments between counsel. An effective use of a Referee at key depositions results in a clean record and maintains civility throughout the proceedings.

In following this revised method, within 6 months of meeting the Referee, each side has a realistic picture of the strengths and weaknesses of his case and settlement discussions can take place. This is true even though no formal pleadings have been filed, tensions have been kept to a minimum with the help of the Referee, and the attorney’s fees have been kept to a reasonable amount so that they will not serve as an impediment to settlement.

Lastly, provided the Referee has remained neutral throughout the proceedings, she/he is then in the best position to transition into a mediator and help you settle your case.

This is a win-win for all.


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