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May 28, 2014
Proposed adoption of new rule relating to
Settlement-related Disclosure in the Commercial Division
The Supreme Court Committee reviewed the Office of Court Administration (“OCA”) proposal regarding the amendment of Commercial Division Rule 8(a) to add settlement-related disclosure to the list of topics that counsel are required to discuss prior to the preliminary conference.
A majority of the members of the Supreme Court Committee at our meeting on May 20, 2014 voted in favor of the proposal following a presentation by members of the Commercial Division Advisory Council.
After discussion of concerns noted below, members supported the provision as it would encourage plaintiffs, as well as defendants, to participate in settlement-related discovery. Because plaintiffs rarely have the incentive to provide documents supporting their claims before motions to dismiss are filed, this new rule would give defendants the opportunity to investigate the strength of plaintiffs’ claims prior to making formal demands.
Among concerns raised was that the change was unnecessary, as Commercial Division Rule 11 already allows limited early discovery settlement disclosure, and Commercial Division Rule 8 already provides that the parties must confer about topics to be addressed at the preliminary conference. Another concern expressed was that if there is no consequence to a party who does not want to discuss settlement-related discovery at the pre-preliminary conference stage, then the rule should not provide that the parties “shall” have such a discussion.