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Ten Things You Should Know... About the Marin County Discovery Facilitator Program
Matt White
Civil discovery motions in the Marin Courts go to the “Discovery Facilitator Program” before being decided by a judge. Here are ten things you should know about the process.
1. What is the authority for this program?
The Discovery Facilitator Program was established by the court in 2012 as Local Rule 2.13. Most of what you need to know about the program can be found in that rule.
2. Generally, how does it work?
Before the court will hear a discovery motion, such as a motion to compel or a motion for a protective order, the dispute will be sent to a discovery facilitator appointed by the court. The facilitator will meet with the parties and try to resolve the matter without the need for court intervention. The mechanism is up to the facilitator; they can set up a conference call, in-person meeting, or any other means of communication and negotiation.
3. How do I get into the program?
Two ways. The first is voluntary. If the parties agree, they may submit a stipulation via eFiling for referral to the program. This tolls the time for filing a discovery motion until a party files a statement of non-resolution. Rule 2.13(B)(1). The form for this stipulation is on the court’s web site.
The second method is mandatory. After a discovery motion has been filed, the court will refer the matter to the discovery facilitator program. There is no “opt out” mechanism. During the facilitation process, the motion remains on calendar.
Once a case has been referred to the program, the ADR coordinator will send each side a list of potential facilitators. Within ten days, the parties may agree on a facilitator, or each side may strike one name from the list.
The coordinator will appoint a facilitator from the remaining options. Rule 2.13(D).
Note that good faith participation in the program satisfies the “meet and confer” prerequisite for filing a discovery motion. Rule 2.13(A).
4. Do I have to pay the facilitator?
Probably not. The first two hours are free. After that, if the parties want to keep going, they may agree to compensate the facilitator. Rule 2.13(F). In practice, many facilitators are willing to stay on beyond the first two hours without charge.
5. Does the facilitator make a recommendation or write a report?
In their discretion, the facilitator may prepare and submit to the court a report, but there is no requirement that they do so. The report may include a summary of the dispute and the parties’ contentions, “and any legal or factual analysis made by the Discovery Facilitator regarding the dispute.” Rule 2.13(H)(3). In practice, this means that the facilitator may make recommendations to the court as to granting or denying the motion, including imposition of sanctions.
6. Is the process confidential?
There is nothing in the local rule stating that the process is confidential. As the facilitator is allowed to prepare a report summarizing the facilitation process (see #5, above), this writer does not believe the process is confidential. In your dealings with the facilitator, be aware that what you say or do may end up in a report to the judge.
7. May the discovery facilitator engage in ex-parte communications with the parties?
There is nothing in the rule that explicitly allows or forbids a facilitator from speaking with the parties separately. Because the facilitator is in effect mediating a dispute, it seems appropriate that they speak to the parties in joint and/or separate sessions. To be safe, the facilitator should probably discuss this issue with the parties jointly before engaging in any ex parte communications on the merits.
8. Who lets the court know that the dispute has or has not been resolved?
If the dispute is resolved with a motion pending, the moving party must withdraw the motion within five days of the hearing or file a declaration explaining why they have not done so. Rule 2.13(G).
If the dispute is not resolved, each party must file and serve no later than five days before the hearing a pleading entitled “Declaration of Non-Resolution.” Per Rule 4.13(H)(1), “[t]he declaration shall not exceed three pages and shall briefly summarize the remaining disputed issues and each party’s contentions.” If the declaration is filed less than five days before the hearing, the matter will go off calendar. Rule 2.13(B)(2). See the rule for specific captioning and other requirements.
If the hearing is dropped due to late filing, the moving party will have to re-notice and serve the motion.
9. How do I become a discovery facilitator?
Easy! Simply fill out the application available online at the court’s website. You are eligible to serve if you are a retired judge or have been an attorney for at least ten years. Rule 2.13(C).
10. What if I still have questions?
You may contact the court’s ADR clerk, adr@marin.courts.ca.gov (415-444-7040) or go to the ADR page on the court’s website: Alternative Dispute Resolution | Superior Court of California | County of Marin
