Proposed Rules Archives

MAR 4.2 - Discovery

Suggested Amendment
Rule 4.2 – Discovery
(Clarifying that CR 26(i) conferences are not required before an arbitrator may hear a motion for additional discovery)
Submitted by the Board of Governors of the Washington State Bar Association

A. Purpose: The proposed amendment clarifies that parties are not required to comply with CR 26(i) before an arbitrator may hear a motion for additional discovery. This is in response to reports of parties to arbitrations opposing MAR 4.2 discovery motions because of the moving party’s alleged failure to comply with the conference requirements of CR 26(i).

CR 26(i) states: “The court will not entertain any motion or objection with respect to [CR] 26 through 37 unless counsel have conferred with respect to the motion or objection.” Thus, by its terms, CR 26(i) does not apply to arbitrations. This makes sense because CR 26(i) is a judicial workload reduction rule. Arbitrators—who oversee a process that is designed to be quicker and less complicated than Superior Court litigation—do not need the same buffer.  Furthermore, MAR 4.2 motions are not related to a party’s failure to comply with or object to discovery; rather, they are seeking to conduct discovery beyond that specified in MAR 4.2.

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