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, 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, Chief Justice Scott Bales of the Arizona Supreme Court ordered the implementation of the Fast Trial and Alternative Resolution Program (FASTAR).