XVII. Law and Motion

Commission Resolution ALJ-164 implemented, on an experimental basis, a law and motion procedure to hear discovery disputes and other procedural motions. We propose to codify this procedure, with modifications, as permanent rules.

We propose to eliminate (1) the requirement of a declaration (as opposed to a statement in the motion) stating facts showing a good faith attempt at informal resolution of the discovery dispute; (2) the automatic assignment of discovery dispute motions to the Law and Motion Administrative Law Judge (ALJ); (3) notice to the parties upon assignment of a procedural motion to the Law and Motion ALJ for resolution; and (4) the provisions regarding the scheduling and reporting of law and motion hearings.

Rule 2.2(b) provides that a signature on a document tendered for filing certifies that, to the signer's best knowledge, the facts stated are true. The requirement of a separate declaration is unnecessarily burdensome.

We conclude from our experience that discovery motions are generally best suited for resolution by the assigned ALJ. While the designation of Law and Motion ALJs and the internal administrative practices associated with the law and motion procedure have enhanced the predictability and timeliness of disposition of discovery motions, these benefits are not dependent upon their automatic assignment to the Law and Motion ALJs.

The experimental program includes provisions regarding the time and manner of law and motion hearings. Our experience is that matters handled under the law and motion procedure are timely resolved without the need for adherence to the schedule set out in the experimental program. In addition, while discovery matters handled by the Law and Motion ALJs, like those handled by the assigned ALJs, rarely require a court reporter's transcript of any hearing, we see no cause to continue to categorically exclude matters referred to the law and motion procedure from formal reporting. Instead, we authorize the Law and Motion ALJ to take appropriate and necessary action to resolve the motion.