The Action on the Ground map provides a visual representation of the various pilot projects and rules reform efforts around the country.

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Innovation in Arizona

Arizona has long been a leader in civil justice innovation. In 1940, the Arizona Supreme Court became the first state to promulgate a procedural system replicating the federal rules. Then, in the early 1990s, when citizen feedback called for reform, the Arizona Supreme Court and the State Bar of Arizona amended the rules, under the guidance of then-Chief Justice Thomas Zlaket, introducing comprehensive pretrial conferences, extensive disclosures, and presumptive limits on discovery.

Arizona continues to be a leader in the area of civil justice reform. New rules of civil procedure were adopted in 2013 that introduced a three-track differentiated case management system. In addition, in December 2014, Arizona’s Business Court Advisory Committee submitted a Report to the Arizona Judicial Council proposing a three-year pilot commercial court. In response, the Arizona Supreme Court established a three-year pilot Commercial Court, which started July 1, 2015, in Maricopa County.

Effective January 1, 2017, Arizona has adopted amendments to Rule 16, 26(b), and 37(g) as well as other rules for the Superior Courts based on the 2015 Federal Amendments. The comments to the amendments emphasize the need to “meet the realities of identifying, handling, and producing [ESI] in a rational and cost-effective fashion.”

The Arizona amendment adopts the language of the federal amendment in Rule 37(g) (the counterpart to FRCP 37(e)) regarding failure to preserve electronically stored information (ESI). The amendment also defines factors for the court to consider in assessing “reasonable steps” which is a predicate for sanctions under the rule. Like the Federal Rules, the Arizona rules scheme establishes that, upon a finding of prejudice, curative measures may be ordered, and, upon a finding of intent to deprive, the court may presume the lost info was unfavorable or instruct the jury it may or may not so presume.

In December 2015, then-Chief Justice Scott Bales of the Arizona Supreme Court issued an Order establishing a new initiative for the Arizona Courts, creating a Committee on Civil Justice Reform focused on issues related to the time and expense of civil litigation, particularly discovery. On October 1, 2016, the Committee submitted a report, A Call to Reform: The Committee on Civil Justice Reform’s Report to the Arizona Judicial Council, including proposed rule changes, to the Arizona Judicial Council. The Committee presented the report to the Arizona Judicial Council in late October, and the Council voted to approve the recommendations. In response to the report and recommendations, in September 2017 the Supreme Court issued a series rule changes, which took effect July 1, 2018. Some of the highlights of the rule changes include:

  • Case tiers to right-size discovery and the pre-trial process to better fit the needs of cases
  • Expedited procedures for resolving discovery disputes
  • Rule revisions regarding preservation, disclosure, and the discovery of electronically stored information
  • Rule changes to provide more protection against unduly burdensome non-party subpoenas

The Committee also recommended that a short trial alternative to compulsory arbitration be implemented on a pilot basis in Pima County. Following the Committee’s recommendation, then-Chief Justice Scott Bales of the Arizona Supreme Court ordered the implementation of the Fast Trial and Alternative Resolution Program (FASTAR).

District of Arizona Mandatory Initial Discovery Pilot Project

Beginning on May 1, 2017, the District of Arizona will be participating in a three-year pilot project to study the potential cost savings that standardized initial discovery requests can have on civil litigation. The program is known as the Mandatory Initial Discovery Pilot Project (MIDP).

The program, adopted under General Order 17-08, will require both parties to disclose both favorable and unfavorable information that is relevant to their claims and defenses, regardless of the parties intent to use the information. This Order is more robust than the initial disclosures that are currently required under Rule 26(a)(1). It will also require the parties to provide notice of service to the Court so that the Court can monitor for compliance.

The Federal Judicial Center (FJC) has compiled a checklist of the requirements required by the pilot project to assist the parties, videos that introduce the pilots and speak to their purpose, as well as a user’s manual that talks about the key features of the MIDP as well as its requirements.

A similar pilot project has begun in the Northern District of Illinois.

Arizona: Fast Trial and Alternative Resolution Program

As part of Arizona’s ongoing innovations in the field of civil justice, the Supreme Court of Arizona established the Committee on Civil Justice Reform in December 2015. The Committee submitted a report, A Call to Reform: The Committee on Civil Justice Reform’s Report to the Arizona Judicial Council, that contained fifteen proposals to the Arizona Judicial Council. One of the proposals recommended that the Court “implement a pilot program in Pima County under which plaintiffs can opt for a short trial in court instead of compulsory arbitration.”

In October 2017, Chief Justice Scott Bales of the Arizona Supreme Court ordered that a pilot program be implemented in Pima County called the Fast Trial and Alternative Resolution Program (FASTAR). As part of the order, the jurisdictional limit of cases subject to arbitration was lowered to one thousand dollars for the duration of the pilot program. The order further allows the Presiding Judge of the Superior Court in Pima County “to approve changes to or addition of forms as necessary to implement the FASTAR program.”

The program’s objective is “to achieve a more efficient and inexpensive, yet fair, resolution of eligible cases.”

The court administrator will assign civil cases to the FASTAR program when the plaintiff requests only monetary damages, the amount of money sought does not exceed the limit set by local rule for compulsory arbitration, the amount of money sought does not exceed $50,000 (including punitive damages but excluding interest, costs, and attorneys’ fees), and the plaintiff will not need to serve the summons and complaint on any defendant in a foreign country.

In every case in the FASTAR program, the plaintiff alone will have the choice of proceeding by Fast Trial or Alternative Resolution. There will be a judge assigned to make all legal rulings in the case and conduct the trial. The program limits discovery, sets timelines for the progress of the case (including discovery, pretrial conferences, and motions), and sets time limits for depositions of medical providers and experts and the trial.

The pilot program runs from November 1, 2017, until October 31, 2020. Annual progress reports will be submitted to the Arizona Judicial Council.

Arizona Commercial Court

In 2014, the Arizona Supreme Court established a Business Court Advisory Committee to explore opening a separate commercial court for business disputes. In December 2014, the Committee issued its Report to the Arizona Judicial Council proposing that a separate pilot Commercial Court could handle commercial cases more efficiently, help reduce the cost of commercial litigation, and provide access to judges who are knowledgeable about business transactions. The Committee unanimously agreed that the success of the business court depended on the quality of judges and early and active judicial case management.

The Judicial Council approved the Committee’s recommendations. Effective July 1, 2015, the Arizona Supreme Court authorized a Commercial Court Pilot Program in the Superior Court in Maricopa County. Three judges with expertise in business disputes and commercial litigation were assigned to the Commercial Court. The Arizona Supreme Court required the submission of three progress reports to the Judicial Council in December for calendar years 2016, 2017, and 2018.

On December 1, 2016, the first Progress Report to the Arizona Judicial Council revealed an expectedly high volume of cases, particularly cases involving requests for emergency relief (order to show cause, preliminary injunction, or temporary restraining order.) Judges also saw an increase in complex dispositive motions translating to increased judicial workload.

To address higher than anticipated case volume and the increase in judicial workload, the Arizona Supreme Court assigned a fourth judge to the Commercial Court in August 2016. In February 2017, the Arizona Supreme Court implemented amendments to Experimental Rule 8.1 limiting the time frame within which a Civil Department judge could transfer a case to Commercial Court, narrowing the eligibility criteria for assignment to the Commercial Court, allowing eligible Commercial Court cases to be voluntary instead of mandatory, and requiring parties to meaningfully confer to cure defects in pleadings before filing a motion to dismiss based on failure to state a claim.

To align with the Arizona Committee on Civil Justice Reform’s Report to the Arizona Judicial Council recommendations on civil case management and Arizona’s new civil justice rules implementing a tiered system of proportionality-driven case management, effective July 1, 2018, the Supreme Court adopted additional amendments to Rule 8.1, including that cases in the Commercial Court are deemed to be assigned to Tier 3.

On December 14, 2017, the second Progress Report to the Arizona Judicial Council confirmed that parties overwhelmingly liked Commercial Court because of the judges’ specific experience in commercial litigation along with the Court’s active and early case management. The second report also confirmed that commercial cases require much higher amounts of judges’ time than other civil cases, but that commercial judges were becoming more adept at dealing with the heavy motions practice. The second report indicated mandatory joint reports and scheduling orders were quite useful.

In March 2018, the Supreme Court of Arizona established a Commercial Court Review Committee (“Review Committee”) to review the data and issues discussed in the two progress reports and to make recommendations about whether to make the Commercial Court rules and procedure and the pilot permanent. 

On June 18, 2018, the Review Committee issued its Report to the Arizona Council. The report revealed a high volume of emergency motions and dispositive motions. Instead of increasing the number of judges specifically allocated to the Commercial Court, the Review Committee suggested restricting the eligibility of cases, excluding cases with monetary claims less than $300,000. The Review Committee made several other recommendations including that the Commercial Court be made permanent, filing fees be imposed for Commercial Court cases to generate revenue for one or more staff attorneys to support the Commercial Court judges, and judicial assignments be extended beyond the typical three-year rotation in Maricopa County.  

In June 2018, the Supreme Court made the Commercial Court in Maricopa County a permanent track within the Civil Department and made Rule 8.1 a permanent rule of the Arizona Rules of Civil Procedure.

Because the June 2018 report did not include a formal analysis of the impact of the Commercial Court’s cases not involving emergency relief, the Superior Court of Maricopa County requested the National Center for State Courts (NCSC) provide a separate report offering conclusions and recommendations for leadership on managing Commercial Court caseloads and judicial assignments. 

In December 2018, the NCSC issued its final report on the pilot program, Superior Court of Arizona in Maricopa County Commercial Court Evaluation, Final Report, December 2018. Much like the other reports, it concluded that over the course of the three-year Pilot Program, the Commercial Court experienced higher than anticipated volume of motions practice including motions for emergency relief and dispositive motions. The Supreme Court’s revisions to Rule 8.1 restricting eligibility criteria for the Court and the addition of a fourth judge helped alleviate the judicial workload. The report concluded that over time, the rate of new filings slowly stabilized. While initially non-emergency cases took longer to resolve, the NCSC report concluded the disposition time had improved over the course of six months. The report also indicated strong consensus of support from attorneys and focus groups for the Court.

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