Introduction and Background

As many have experienced, New Jersey Courts can become a quagmire in construction defect (and other complex) cases. To potentially fix this issue, on September 1, 2018 New Jersey implemented brand new Complex Business Litigation Program (“CBLP”) rules – rules that presumptively include all complex construction defect cases with a value above $200,000. This post is a general guideline on (1) what the CBLP changes; and (2) how to effectively utilize the CBLP in an advantageous fashion.

One Judge Per County

The CBLP requires each New Jersey county to designate a CBLP judge to rule on motions or otherwise preside over the inevitable discovery disputes common to CD cases. This particular rule, §4:102-3, should hopefully allow more prompt discovery rulings that allow cases to progress quicker than the current system.

Result: The new CBLP rules will likely result in a more efficient discovery practice as the presiding Judge will be familiar with complex construction actions and the complications of the same.

Initial Conference

1. §4:103 requires all parties, prior to (a) discovery commencing; and (b) an initial case management conference, to hold a conference among all counsel. This initial conference is where smart litigants can really obtain an advantage. During this conference, counsel is required to:
2. Set initial case deadlines, including deposition and discovery end dates;
3. Set deadlines for initial disclosures;
4. Set limits for discovery requests. The current CBLP rules limit discovery requests to 15 interrogatories per party, including sub-parts, unless otherwise stipulated or ordered by Court.
5. Set limits for the hours and amounts of depositions. The CBLP Rules presumptively limit, unless otherwise stipulated by the parties or ordered by the Court, a limit of 70 hours for plaintiff depositions and 70 hours total for all defendant depositions.

This conference is where a smart litigator can utilize the rules in a fashion to craft an advantage for a client. Is the client a 3^rdor 4^thparty defendant with limited liability? If so, it would be best to limit discovery as much as possible. Is the client the target defendant? If so, it would be best to expand discovery as much as possible.

Result: If played properly, the new rules allow for tactical decisions to benefit the client and/or limit defense costs.

Initial Disclosures

As noted above, initial disclosures are now required in all CBLP cases. The disclosures include the following information: (1) all relevant insurance policies; (2) identity of individuals with discoverable information; (3) initial relevant documents or categories of relevant documents; and (4) alleged damages.

The Initial Disclosures are a blessing for risk-transfer purposes. Often, through the intransigence or indifference of counsel, the actual insurance policies often must be subpoenaed – which is not a short process. Consequently, the new CBLP rules allow the risk-transfer phase of construction litigation to commence at an earlier stage. Specifically, this allows initial tenders and specific responses at an earlier date – which starts the clock for potential reimbursement of costs and/or fees.

Result: The inclusion of the mandated exchange of insurance policies is a massive benefit to the program. Moreover, the disclosures additionally require all parties to disclose the identities of individuals with relevant information at an early stage, without specific requests, This can also allow the early joinder of relevant parties as well as an analysis of possible contribution and/or risk-transfer possibilities.

Meet and Confer

However, with respect to discovery motions, the new CBLP rules also require the parties to “meet and confer” prior to the filing of the motion. This is similar to the requirement in Federal Courts, that require the relevant parties to attempt to resolve the dispute in good faith prior involving the Courts.

Result: Parties will likely no longer unreasonably withhold discoverable information that another party is entitled to. Discovery motions will no longer be commonplace but rather only result where a genuine dispute exists between the parties.

Conclusion

These new rules are designed to streamline the litigation process.  Whether or not they actually effectuate change and make construction defect litigation more efficient remains to be seen.  We’re only two months into the new rules, so much remains to be seen!

Thanks to Matt Care for his work on this post.  For more information about it, please contact ">Bob Cosgrove.