In 2009, the American College of Trial Lawyers issued a white paper by a Joint Task Force on Discovery. The task force concluded that the civil discovery system in American courts was in grave need of repair. The discovery process had become an end in itself, and threatened the continued operation of the civil justice system. The task force concentrated most of its comments on the federal courts, but its many observations also pertained to the state court systems of the United States. This column is devoted to one aspect of deciding key preliminary issues.
The task force report contained a suggestion that a new summary procedure should be developed where the parties can submit an application for determination of enumerated issues (such as rights that are dependent on the interpretation of a contract) by pleading and affidavits or other evidentiary matter without full discovery of the entire case. The task force cited an example, a proceeding used by the Canadian courts called an application, in which a party can petition the court to hear enumerated issues prior to a full trial on the merits. Depositions may be taken, but are limited to what is contained in the affidavit that accompanies the petition. The task force recognized that this is similar to a partial declaratory judgment, but with broader applications.
