By Judge Allen Phillips, Jackson
Some may recall that I admire the wisdom of Abraham Lincoln. I cited some of that wisdom in an earlier post regarding attorney’s fees.
Beyond fees, Lincoln’s visionary insights into other matters ring as true today as they did nine score and six years ago (That was 1836, the year Lincoln received his law license). He once said that lawyers should “discourage litigation,” instead admonishing us to “persuade [our] neighbors to compromise when [we] can,” pointing out that the “nominal winner is often a real loser—in fees, expenses, and waste of time.”
Of course, Lincoln knew, as do we, that not all disputes end in compromise. This is true during litigation in general and in discovery specifically. In this post, I will look at the rules governing discovery disputes in the Court of Workers’ Compensation Claims and how the rules say to resolve them.
As a starting point, the Court’s rules encourage agreement just as Lincoln suggested (Scroll to page 12). Indeed, the opening sentence of Rule 0800-02-21-.17 DISCOVERY reads: “Parties are encouraged to obtain any necessary discovery informally to avoid undue expense and delay.” (Those negatives sound like someone else’s admonitions, don’t they?)
Further, the Rule provides that discovery, “must be sought in accordance with the Tennessee Rules of Civil Procedure unless [the Court’s] rules provide an alternative procedure.” The rule goes on to describe the procedures for written discovery, depositions, and subpoenas.
Then, in Rule 17(5), we find the following: “In the event of a discovery dispute, either party may file a motion at any time after a petition for benefit determination is filed.”
The language “either party may file a motion at any time after a petition for benefit determination is filed” is notable: a party might seek the Court’s intervention before or after the mediator issues a dispute certification notice.
Further, remember that a separate petition for benefit determination for discovery is not needed to resolve a dispute if a petition has already been filed. Neither is a request for expedited hearing. Instead, the rule specifically says a party may file a motion. The requirements for a discovery motion are set forth in Rule 17(5)(a)-(c).
Obviously, if no petition for benefit determination has been filed, then any party may file one for discovery purposes. The petition form includes specific language to that effect on page 3. It also includes the language that: “If a PBD is already on file, it is not necessary to file another PBD for discovery,” affirming that a motion is the proper vehicle to resolve discovery disputes.
Hopefully, as Lincoln said in his first inaugural address, “the better angels of our nature” will prevail during discovery. But if not, a motion is the answer.