Comment

This rule is similar to former Superior Court Rule 62, but does contain several provisions to improve former Rule 62. First, like former Superior Court Rule 62 it contains a “meet and confer” requirement that mandates that, within 20 days after the Answer date, the parties must confer and attempt to reach agreement on all important issues regarding scheduling, discovery and the management of the litigation through the time of the trial. However, unlike former Rule 62, Rule 5 provides that if the parties are able to reach agreement and execute a stipulation regarding all such matters, this stipulation shall presumptively become the case structuring conference order, thus eliminating the need for a case structuring conference. This change is designed to remedy the frequently-heard complaint that the practice of routinely holding structuring conferences requiring the personal appearance of counsel, or parties if unrepresented, in every case is expensive and unproductive. In addition, Rule 5 also provides that even where the parties are unable to reach agreement on all issues or where the court finds the agreement unacceptable, the structuring conference will be held telephonically unless the court specifically orders that counsel and/or the parties appear in court for the conference. This aspect of the new rule reverses the practice under which structuring conferences are held at the courthouse unless a party or counsel files a motion requesting that he or she appear telephonically. Again, the purpose of the change is to reduce costs and increase efficiency.

Section (c) of this rule also changes former Rule 62 in two other significant ways. First, it changes the date for holding the structuring conference from 45 days after the return date, as provided in former Rule 62. Under Rule 5, the structuring conference must be held within 75 days after the Answer is filed. Given the automatic disclosure requirements established by Rule 22, 75 days after the Answer will give the parties time to digest the disclosures made pursuant to Rule 22 and to formulate reasoned positions in cases where they have been unable to reach agreement on all pretrial management issues. This time limit also is realistic in light of superior court resource limitations. The second significant change accomplished by section (c) of Rule 5 is the provision stating that discovery can be initiated before the structuring conference is held and before a structuring conference order has been issued and that a responding party is required to comply with its discovery obligations notwithstanding the fact that a structuring order has not yet been issued. This provision is intended to address the complaint often heard from lawyers that court scheduling issues which result in delay in holding a structuring conference are used as an excuse to delay responding to entirely legitimate discovery requests.