In 2015 our New Jersey Supreme Court created a new path for business disputes and commercial litigation. The Complex Business Litigation Program (CBLP) was instituted throughout the trial division of the court system. The CBLP required each county to appoint a “business judge” to supervise, manage and adjudicate commercial and business cases, as well as construction disputes that meet certain threshold requirements. Inclusion in the program requires that one of the parties initially designate the matter as a complex commercial matter or a complex construction case. In addition, the case must have a damage claim in excess of $200,000.
A. The new rules for the business court.
Effective September 1, 2018 the Supreme Court has now adopted an additional set of rules specifically applicable to CBLP matters supervised and adjudicated by each county’s business court judge. These recently invoked rules, R. 4:102 through 4:105, specifically address the availability and administration of the CBLP to commercial and business controversies. They are implemented to expedite and streamline the pre-trial phases of discovery, motion practice and case management. Most significant, the new rules greatly mirror the Federal Rules regarding those same pre-trial stages. Similar to the Federal Rules, parties in the CBLP will now have an affirmative duty, without discovery demands from adversarial counsel, to provide initial disclosures by certain time deadlines and in specific formats set forth under the court rules. Also, like the Federal Rules, parties will have to preliminarily confer and submit discovery plans to the court for approval. Mandatory case management conferences are to be held with the judge of the business court within 90 days after service of the summons and complaint.
To catalyze the discovery process in each case, these new rules set forth a standard form of confidentiality and protective order which can be modified between the litigants by consent. Regarding pre-trial motion practice, attorneys are still required to consult about any disputes, and ultimately to conference such issues with the judge prior to filing any discovery motion. As to dispositive motions however, the standard briefing schedule under R. 4:46 no longer applies. On summary judgment motions the parties are to confer and stipulate to a briefing schedule, after which the movant will advise the court and request a hearing date.
The imminent horizon for the CBLP includes future revisions to these rules anticipated to further smoothen pre-trial procedures for each case. To facilitate that, the Supreme Court has recently solicited comments from active commercial trial practitioners on proposed guidelines for the overview and case management of CBLP cases. The proposed scope under the guidelines include suggestions of a model discovery plan, a model scheduling order and standard electronic discovery agreements to be entered between the parties in each case.
B. The benefits of the new rules for the business court.
The new rules for the CBLP advance the mantra and mission of the program to make the lifespan of business cases more time efficient and cost effective for both the court and the litigants, while still preserving each party’s right to their day in court and fair adjudication of all claims. These changes bring greater control to the court of what can at times be unwieldy document production, a multitude of depositions and voluminous pre-trial motion practice. The rules, proposed model forms and guidelines serve to streamline the CBLP. These efforts are designed to make access to the business court more reasonable, not only for attorneys who handle business litigation but, most important, for litigants in each case so that business disputes can be fully adjudicated within a realistic time frame.
Tim Lyons is a partner and is Co-Chair of the firm’s Business Law and Litigation Department. His work is devoted to complex civil litigation, with an emphasis on business and commercial disputes in both the state and federal courts of New Jersey. His practice includes the prosecution of civil trials and appeals, administrative hearings, arbitrations and participation in other select alternative dispute resolution programs. Contact Tim Lyons.