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Making Straight the Road: Case Litigation Plans as a Means of Efficiency and Predictability in the Tennessee Business Court

Making Straight the Road: Case Litigation Plans as a Means of Efficiency and Predictability in the Tennessee Business Court

Tennessee’s recently-convened Davidson County Business Court will adjudicate business litigation in Nashville and may hear business cases from around the state with the consent of both parties. The Business Court’s stated goal is to increase efficiency in complex business litigation in Tennessee, and toward that end the procedures emphasize the early adoption of individualized Case Litigation Plans to streamline its proceedings. These plans set each case on a swift and steady course by establishing a schedule for major case events and speedily resolving as many preliminary issues as possible.

The Business Court mandates the participation of all parties and all lead and local counsel at a conference to design and enter the Case Litigation Plan, though remote attendance is possible if authorized by the Judge. While there is no deadline for setting the conference, the Business Court’s procedures anticipate the Case Litigation Plan will be entered very early in the litigation. Through the plan, the Business Court will establish, with the input of the parties, a realistic road map for the case designed to minimize cost and confusion.

Following the conference, the Business Court will enter an order binding on all parties to memorialize the Case Litigation Plan. The Business Court can modify the plan where necessary, but absent modification, the parties may be subject to sanctions if they fail to adhere to it.

The Business Court intends for the plan to narrow the scope of the litigation by quickly resolving preliminary issues. To that end, the Business Court can address the pleadings at the conference to identify and clarify causes of action and affirmative defenses, and will resolve the pleadings issues in the initial order. The Business Court will also set deadlines for amendments to the pleadings. By clarifying each party’s position, the Business Court will allow litigants to concentrate their resources on the actual dispute and not waste time and money preparing for contingencies that may or may not arise from an inartfully-drafted complaint or answer.

Similarly, the Business Court at the conference will determine whether additional parties are necessary to resolve the case, and will set a timeline for bringing in additional parties. The Business Court will also determine whether there is any need for severance, consolidation, or coordination with other cases. As a result of the conference, the parties will, at a very early stage in the case, obtain certitude with respect to who is in the case and what is in dispute. If a party requires some preliminary discovery to take an informed position on these issues, the Business Court can authorize that discovery prior to the conference.

The conference agenda will also include discovery matters. The Business Court will address the number of fact and expert depositions allowed, as well as the length and sequence of those depositions. The Business Court will also address the anticipated areas of expert testimony and a schedule for expert disclosures and responses. The conference will cover the anticipated volume of documents and electronic information, as well as any technology that can make discovery cheaper and more manageable. The order will incorporate all of the discovery decisions made at the conference.

The Business Court will also set a motions schedule at the conference. The Business Court will require the parties to group motions instead of filing them serially, reducing costs down by allowing for consolidated motion hearings. Where out-of-town counsel will be involved in a hearing, the Business Court may authorize videoconferencing or teleconferencing, which can further reduce costs. The Business Court can also address ADR and will likely structure the Case Litigation Plan in a manner that will further settlement efforts.

By frontloading the case plan process, resolving pleading issues early, and binding the parties to a set schedule, the Business Court will be able to structure litigation as efficiently as possible. The parties will be able to check the case’s progress against a deliberate schedule, increasing predictability of the costs of litigation and allowing for a more informed valuation of settlement potential. Such a transparent process is not always possible in some state courts less experienced with complex business cases. The individualized Case Litigation Plan is a key element of the Business Court’s efforts to streamline business litigation and make Tennessee an even more appealing place to do business.

Jonathan T. Skrmetti

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