Ky. Sup. Ct. Order 2023-15 BCR 5.10

Each party shall, without awaiting a discovery request, provide to all

other parties:

a. the name, and, if known, the address and telephone number of

each individual likely to have discoverable information, including the subject of

that information, that the disclosing party may use to support its claims or

defenses, unless the use would be solely for impeachment;

b. a copy, or description by category and location, of all documents,

electronically stored information, and tangible things that the disclosing party

has in its possession, custody, or control and may use to support its claims or

defenses, unless the use would be solely for impeachment;

c. a computation of each category of damages claimed by the

disclosing party, who must also make available and copying under CR 34 the

documents or other evidentiary material, unless privileged or protected from

disclosure, on which each computation is based, including materials bearing

on the nature and extent of alleged injuries suffered; and

d. identification for inspection and copying under CR 34 of any

insurance agreement under which an insurance business may be liable to

satisfy all or part of a possible judgment in the action or to indemnify or

reimburse for payments made to satisfy the judgment.

A party must make its Initial Disclosure based on information reasonably

available at the time of disclosure. A party is not excused from this obligation

because it has not fully investigated the case or because it challenges the

sufficiency of another party’s disclosures or because another party has not

made its disclosures.

This Order shall be effective July 1, 2023, and until further Order of this

Court.

Entered this 7th day of June 2023.

All sitting; all concur.

____________________________________

CHIEF JUSTICE

Business Court Docket Rules of Practice

Appendix 1

ABC CORPORATION,

Plaintiff

CASE MANAGEMENT

v. REPORT TEMPLATE

XYZ CORPORATION,

Defendant

The undersigned counsel participated in a Case Management Meeting on

[INSERT DATE] and submit this report on [INSERT DATE] as required by

Jefferson County Business Court Docket Rules of Practice BCR 4.3.

a) Brief Summary of the Case. Each party (or group of parties

represented by common counsel) shall summarize the dispute with a brief

statement not to exceed 250 words (or 500 words if submitted jointly).

b) Initial motions. This section of the report should list whether any

party plans to file a motion for emergency relief, a motion to dismiss, or any

other early-stage motion. The party that plans to file the motion may provide a

short explanation of the basis for the motion. That party should also list the

projected date on which the motion it plans to file the motion. This section

should also discuss whether the parties have agreed on any deadlines for

amending the pleadings or adding parties and the impact of those deadlines on

the case.

c) Discovery. The parties should summarize their agreement and/or

competing proposals for discovery. The section should cover at least the

following topics:

i. an agreed date for the exchange of Initial Disclosure of

information of each party as set out in BCR 5.10;

ii. a proposed discovery schedule;

iii. an electronically stored information protocol;

iv. limits on written discovery and depositions;

v. any agreements related to privilege logs;

vi. any agreements under CR 26.05(c) regarding the duty to

supplement responses;

vii. any agreement about the effects of the inadvertent waiver of

attorney-client privilege or attorney work-product; and

viii. expert discovery.

One or more parties may ask the Court in the report to postpone the

obligation to serve Initial Disclosures or create a discovery schedule until after

the Court decides any initial motions, including but not limited to, motions to

dismiss. Parties may also ask the Court to waive the obligation to serve Initial

Disclosures.

d) Confidentiality. The report should indicate which parties, if any,

anticipate the need for a confidentiality/protective order. If the parties agree

that a confidentiality/protective order should be entered but do not agree on

the terms of that proposed order, the report should explain the nature of the

disagreement and any specific language in dispute.

e) Mediation. The report must explain whether the parties agree to

early mediation and any agreements to facilitate an early mediation. If the

parties do not agree to early mediation, then the report must confirm that

counsel have discussed with their client(s) the cost of litigation and the

potential cost savings that may be realized by an early mediation. Additionally,

the report must include a deadline for mediation (or competing proposals) and

the name of an agreed-upon mediator. If the parties do not agree on a

mediator, then the report should list each party’s choice of mediator.

f) Special Circumstances.

i. Class allegations. If the pleading includes class action

allegations, then the report should summarize the parties’

agreement and/or competing proposals for the timing, nature,

and extent of class certification discovery, how and/or whether

class and merits discovery should be bifurcated or sequenced,

and a proposed deadline for the plaintiff(s) to move for class

certification. If multiple related class actions are pending, the

parties must report their views on special efforts that should be

undertaken and the time for doing so, such as the appointment

of lead counsel, consolidation, or coordination with proceedings

in other jurisdictions.

ii. Derivative claims. If the complaint includes derivative claims,

then the report should summarize the parties’ positions on

whether proper demand was made. The report should also

describe any agreement and/or competing proposals on any

special committee investigation, any stay of proceedings, or

other issues regarding the derivative claims.

iii. Related proceedings. If there are multiple related proceedings,

then the parties should state their views on what efforts,

including but not limited to consolidation or shared discovery,

should be undertaken.

g) Special Masters/Referees. The report should identify any matter(s)

that might be appropriate for reference to a special master or referee. The

parties are specifically encouraged to think creatively about how the use of a

referee might expedite the resolution of the case.

h) Other Matters. The report should identify and discuss any other

matters significant to case management.

The parties have contacted the Court’s administrative staff by telephone

as required pursuant to BCR 4.2, and the Case Management Conference is

scheduled for ____________, at ___ _.m.

[INSERT DATE AND SIGNATURE BLOCKS]

Business Court Docket Rules of Practice

Appendix 2

Guidelines for Appointment of Special Master or Discovery Referee

The following guidelines apply in cases where the parties or the court

determine that a special master or discovery referee would assist the efficient

resolution of certain issues under BCR 5.1

Under BCR 4.2(m), the parties are required to consider at the Case

Management Meeting whether a special master or discovery referee may assist

the efficient resolution of certain issues in the case, and if so determined, to

summarize their views in the Case Management Report as required under BCR

4.3(g) (see Appendix 1).

a. Special Master. When considering a Special Master to oversee

portions of the case in accordance with CR 53, the parties should

consider the following:

i. the proposed scope of the Special Master’s authority and

tasks;

ii. the grounds for reference under CR 53.01, including a

statement describing the basis for disagreement if any party

has not joined in or consented to a Special Master;

iii. the name and qualifications of any candidates that the Court

should consider as a Special Master, including whether the

parties consent to each proposed candidate; and

iv. any requests for special authority to be provided under Rule

53.03.

b. Discovery Referee. In addition to, or as an alternative to a Special

Master appointed in accordance with CR 53, counsel are

encouraged to give special consideration to the appointment of a

discovery referee upon the agreement of the parties, particularly in

cases expected to involve large amounts of electronically stored

information or when there may be differing views regarding the use

of keyword searches, utilization of predictive coding, or the shifting

or sharing of costs associated with large-scale or costly discovery.

The parties are encouraged to be creative and flexible in utilizing

discovery referees to avoid unnecessary cost and motion practice

before the Court.

The parties should consider the following regarding the

appointment of a discovery referee:

i. the proposed scope of the discovery referee’s authority, duties,

and powers, including any other issues relevant to the proposed

work of the referee;

ii. the name and qualifications of any candidates that the Court

should consider appointing as a discovery referee, including

whether the parties consent to each proposed candidate;

iii. the proposed compensation of the referee and the source of that

compensation; and

iv. the process to be used to submit the discovery referee’s findings

and/or conclusions to the Court for final decision, including

whether the findings and conclusions of the referee are binding

on the parties, as if issues have been submitted to binding

arbitration, or whether they are subject to further review of the

Court.