New Jersey Supreme Court Approves Special Rules for Matters in the Complex Business Litigation Program

On January 1, 2015, the New Jersey Superior Court implemented statewide the Complex Business Litigation Program (“CBLP”) for complex commercial and construction cases with amounts in controversy exceeding $200,000. Each case in the CBLP is managed by a single judge assigned in each county to handle cases in the program, thus providing each case with individualized case management and a jurist experienced in managing and resolving similar matters.

On July 27, 2018, the New Jersey Supreme Court adopted special rules for cases in the CBLP to take effect on September 1, 2018. The current rules in Parts I and IV will continue to apply to CBLP cases, unless contradicted by a new rule. The new rules, largely adapted from rules in the federal courts and other business courts, mainly modify certain aspects of case management, discovery, and motion practice.

The more substantial practice changes prompted by the new rules are:

Initial Disclosures: Following the federal courts’ innovation of requiring mandatory disclosures, litigants in the CBLP will be required to disclose early in the case: 1) all individuals with knowledge of information that the disclosing party may use to support its claims or defenses, 2) copies or a description of (including the location of) all documents, electronic data, or tangible things that the party may use to support its claims or defenses, 3) a computation of the party’s damages, including non-privileged documents on which the calculation is based, and 4) applicable insurance policies.

Discovery Plans and Preliminary Conferences: Also following federal practice, litigants in CBLP cases will be required to meet and confer early in a case about anticipated discovery needs and issues and to develop a written discovery plan to be submitted to the court to assist the court in the preparation of an initial case management order. Discovery is to be held in abeyance until the parties have conducted the preliminary conference.

Mandatory Initial Case Management Conference: The CBLP judges will be required to convene an early initial conference and must, within the earlier of 90 days after any defendant has been served with process or 60 days after any defendant has appeared, issue an initial scheduling order.

Final Pretrial Conferences and Orders: All CBLP cases will be pre-tried pursuant to existing Rule 4:25.

Presumptive Limitations on Discovery: Unless the parties agree or the court orders otherwise, each side (i.e. all plaintiffs and all defendants and third-party defendants) shall be limited to ten depositions of no more than seven hours. Each party will be limited to 15 interrogatories, unless otherwise stipulated or ordered.

Uniformity for Spoliation of Electronically Stored Information: In the area of electronic discovery, the new CBLP rules provide guidance for when and how a party should be sanctioned when it fails to preserve electronic data. The new rules also provide a safe harbor for parties who act in accordance with a court order for the preservation of electronic data, precluding the imposition of sanctions for failing to preserve data beyond the scope of the order.

Categorical Privilege Logs: To limit the expense of preparing vast privilege logs, which are common in large commercial and construction litigation, the new rules encourage litigants to use “categorical” privilege logs where categories of similar documents, rather than individual documents, are described in the log. A party’s refusal to agree to the use of “categorical” logs may result in that party being held responsible for the other party’s cost in preparing a traditional document-by-document privilege log.

Standard Protective Order: To expedite the negotiation and ultimate entry of a confidentiality protective order, which is typically required before the parties can begin to exchange discovery in earnest, the new rules include a standard default confidentiality protective order, which can be adjusted by the parties by agreement.

Discovery Motion Practice: Like the current practice, the new rules require litigants to meet and confer over discovery disputes before making a discovery motion. But the new rules add an extra requirement: the party seeking relief must first request and participate in a telephone conference with the court in an effort to resolve the discovery dispute. Only if that effort fails may the party file a motion.

Summary Judgment Motions: Under the new rules, the parties are not subject to the briefing schedule in R. 4:46-1 for summary judgment motions. Instead, the parties are expected to agree on a briefing schedule for such motions. When the briefing is complete, the moving party is required to so advise the court and to request a hearing date for the motion.