Orange County's discovery pilot cuts delay with 97% IDC resolution rate

Orange County Superior Court's ambitious pilot program to streamline civil discovery is only a few months old, but its impact has already been dramatic: a 97% resolution rate, more than 100 informal discovery conferences handled weekly by one judge, and early signs that long-standing delays in civil calendars are shrinking.

Launched June 30 with five unlimited civil departments and expanded to 10 on Oct. 1, the program funnels all discovery disputes and many law and motion matters from participating judges into a single dedicated department run by Judge Andre De La Cruz in Costa Mesa.

"I resolve approximately 97% of them without the need for a motion to be heard on the merits," De La Cruz said of the discovery disputes. "When attorneys arrive prepared with concrete proposals, most matters resolve within minutes.

"One of my main objectives is to create a culture of compliance," he said. "Compliance is not optional. I set very clear expectations, and I hold everyone's feet to the fire."

Judge David Hesseltine

The court hopes to add at least five more departments early next year, "with the ultimate goal to be pretty much our entire panel," said Judge David J. Hesseltine, supervising judge of the Civil Department.

Participation is voluntary for judges, but court leaders expect nearly all to opt in. The early data is strong enough that other counties have made inquiries about replicating the model.

A structural fix to a systemic problem

The program's roots go back to the cascade of delays that began during -- and worsened after -- the COVID-19 pandemic. As courts reopened, filings surged, but judicial resources did not.

"Since COVID we have seen a continual increase in filings," Hesseltine said. "The volume of work keeps getting greater and greater. The resources are the same at best."

That mismatch led to increasing delays in getting hearings on law and motion matters--delays that grew long enough to slow settlement, trial readiness and case disposition.

When the court reviewed its data, one fact stood out clearly: Slightly more than one-third of all motions in unlimited civil cases were discovery motions. Meanwhile, discovery disputes uniquely lent themselves to early, informal resolution if a judicial officer could intervene before the parties invested in full briefing, Hesseltine explained.

"Just assigning an extra judge wasn't a solution. We were looking to come up with something that would have some compounding benefits and be more of a structural change," he said.

The court had also observed the success De La Cruz was having in his former department, where he used informal discovery conferences to resolve cases with multiple disputed motions.

When discovery motions represent a third of the workload, removing them from the trial courts leaves what Hesseltine called "Swiss cheese"--big blocks of calendar space that allow other motions, such as summary judgments, injunctions and demurrers, to be heard weeks earlier.

How the pilot works

Under the new system, any discovery motion filed in a participating department automatically triggers an order directing the parties to an informal discovery conference (IDC) with De La Cruz, usually about 31 days after the reservation date. Full briefing is prohibited unless the IDC fails.

"When they get their notice that they've been ordered to an IDC, they're told, 'Don't spend your time doing an opposition brief. Don't do a reply brief,'" Hesseltine said. "You're only going to need that if the IDC process is unsuccessful.'"

The parties must instead submit a joint, four-page, single-spaced letter brief attesting that they met and conferred meaningfully--in person, by phone or by Zoom.  "Email chains and letters do not qualify as meet and confer because they rarely, if ever, result in actual resolution," De La Cruz emphasized.

"Filing deadlines are three court days prior to the IDC and late filings are routinely disregarded," he said. "Strict enforcement across the board promotes fairness and preparation."

Creating a culture of compliance

De La Cruz describes the program as "intentionally structured and focused on early intervention to keep litigation moving efficiently." His goal is not simply to resolve motions; it is to change attorneys' behavior in the interest of all parties - and the court.

IDCs are held in conference rooms, rather than in courtrooms or chambers. "I move room to room like a doctor visiting patients," he said. "The environment is intentionally informal to encourage collaboration and reduce the adversarial tone."

To reinforce that expectation, he issues monetary sanctions when counsel fail to follow his orders. These, he stresses, "are never punitive for their own sake, but used to protect the integrity of the process and ensure fairness to litigants who do follow the rules."

He starts low. A first-time violation earns what he calls a "shot across the bow."

"Look, it goes in my notes. Don't do it again," he tells counsel.

Repeated violations escalate sanctions, up to motion dismissal.

In November, De La Cruz started at $200 and ended up issuing $9,500 in sanctions after repeated failures by the defendants to meet deadlines, respond to discovery or appear at hearings in a breach of contract case. Best Wheels and Tire, LLC v. Liquid Metal Motorsports, Inc., 30-2022-01288714-CU-BC-CJC (O.C. Super. Ct., filed Oct. 27, 2022). The judge also refused to consider the untimely briefs they filed.

"The case isn't all that complicated, but the adverse parties and their lawyers have done everything they can to obstruct discovery ... which has driven up costs and created delays," the plaintiff's attorney, Michael D. Kibler of Kibler Fowler & Cave LLP, wrote in an email. 

"That said, our experience with the discovery court was positive," he added. "The court first attempted to obtain voluntary compliance from the other side through informal conferences and when that failed after several attempts, issued firm rulings that sided with us across the board. ... Even with an opposing party who is not proceeding in good faith, the discovery court got to the right place and moved the case forward so we can be ready for trial."

Although he has not seen undue delays in the Orange County trial courts, Kibler said, "Our experience has been that the discovery court is able to give discovery disputes more bespoke or individualized treatment, which oftentimes obviates the need for a more costly formal motion altogether."

In-person conferences, not mini-hearings

Every IDC is conducted in person--no remote appearances allowed.

"To resolve a dispute, you need to look each other in the eye," De La Cruz said. Remote appearances, he noted, often lead to "half-hearted engagement," while "face to face participation promotes civility and honest dialogue."

While "the process moved quickly, for the most part, and facilitated some better communication between parties generally," in his experience, attorney James G. Perry of Atticus Injury Law is not sure it was necessary to appear in person and felt more focus was needed on conduct.

"While I can appreciate why an in-person meeting can facilitate greater communication, frankly, the reason a motion to compel is necessary (and, in turn, the IDC hearing is necessary) is because communications between the parties are exhausted," he wrote in an email.

"If communications were not exhausted, then the MTC should be denied outright and the parties instructed to meet and confer before filing a MTC (obviating an IDC hearing)," Perry suggested.

He found the process led to faster compliance "to the degree the opposing party was told in a general sense that its positions were meritless. However, because the parties were told to (and did) negotiate amongst themselves after initially speaking with the judge, less specifics were discussed with the judge. This has led to some confusion about the scope of the court's rulings."

De La Cruz said, "The IDC is about collaboration, not ceremony," noting that counsel may

appear in informal attire.

It is also not a mini-motion hearing, he said. "Counsel is well advised to bring clarity, not volume.

"The process has shifted the culture of discovery practice toward one of cooperation and direct engagement," the judge said.

West Coast Trial Lawyers partner Ronald Zambrano provided an example of that. The requirement for an in-person meeting at the Costa Mesa Justice Complex pushed him and his opposing counsel in one case to reach agreement during their meet and confer calls.

"I think the process incentivizes people getting to brass tacks on what matters, to avoid the extra work and an in-person hearing.  Also, it forced further meeting and conferring," Zambrano said.

His experience was: "We filed motions to quash subpoenas in our department at the Central Justice Center.  Then we were told the motions are off calendar pending an IDC at the Costa Mesa Courthouse, in person.  If things don't resolve, then our motions go back on calendar.

"We were saying, 'What are we doing? We have to meet in person?' We started to think, 'Maybe we can work this out.' They wanted my client's medical records from the beginning of time, and that's not OK. So, over several days we resolved the subpoena issues informally before the IDC, with defense narrowing the scope of the subpoenas," he said.

His opponent would have had to justify his travel and time costs to his own client, Zambrano noted, "And I'm not getting paid until I'm finished. So, it worked for me."

For Perry, however, "Unfortunately, the biggest issue, which I believe will remain, is that there is little deterrence of bad conduct. Meaning, because these IDC hearings focus on the issues, and not on the conduct--e.g., one party's 'objections were meritless, and will lead to $X in sanctions'--there is a component of the current system that is lacking."

Perry suggested, "Ideally, and to deter a party from using this process to delay litigation, the IDC hearing should also be about the conduct (if warranted) and the issues.

"In the absence of keeping the stick, I worry the carrot will not be enough to reduce delays and, in many circumstances, will increase it," he said.

When disputes don't settle

For the small percentage of cases that cannot be resolved informally--even after continuances designed to allow supplemental responses--De La Cruz sets a formal hearing about 40 to 45 days out and issues a briefing schedule.

Importantly, discovery matters remain with De La Cruz, while all other proceedings continue before the trial judge. The bench maintains constant communication to manage overlapping issues and scheduling, Hesseltine said.

Early results and future hopes

Presiding Judge Maria D. Hernandez

Presiding Judge Maria D. Hernandez said the program "is part of a much bigger effort that our court has undertaken to implement delay-reduction programs across all our operational areas." The pilot has already produced "meaningful improvements," though she emphasized the cases stay in the court's inventory for years, meaning the full impact will take time to measure.

"In the few months this pilot program has been in operation, we've experienced positive improvements in the scheduling of hearings," she said. "We anticipate in the coming months that improvements in the processing of cases will improve as well."

Some participating departments have cut law and motion delays by roughly 11 weeks, Hesseltine said.  After the immediate improvement, delays rise slightly as the "Swiss cheese" gaps fill, but they remain significantly better than pre-program levels, he said.

Meanwhile, De La Cruz reports no backlog in his courtroom. "When people file their motion, they're getting sent out as early as 21 to 28 days," he said. He currently has bandwidth for about 30 cases a day, which translates to more than 100 IDCs a week.

Hesseltine said the inquiries from other counties reflect wider statewide concern about civil case delays. The program aligns with Chief Justice Patricia Guerrero's emphasis on delay reduction, a focus she highlighted several years ago, but the Judicial Council noted that this is Orange County's own, self-developed project.

If the entire unlimited civil panel opted in, Orange County would become the first in California to adopt a streamlined discovery system at this scale.

Its early success stems from a few simple principles, according to De La Cruz: early intervention, clear rules, strict compliance--and a shift in the culture of discovery itself.

His background also proved to be an asset in ensuring that happens.

"Well, I'm former military," De La Cruz said. "And I think that helps."