On October 8, 2020, the supreme court entered two orders promulgating amendments to the Hawaii Rules of Civil Procedure (HRCP) and to the Rules of the Circuit Courts of the State of Hawaii (RCCH). These amendments are designed to reduce costs and delay in civil litigation and to streamline the litigation process in Hawaii circuit courts.

These orders are the culmination of a truly incredible amount of work by the Task Force on Civil Justice Improvements. The Task Force, headed by the Honorable Craig Nakamura, retired Chief Judge of the Intermediate Court of Appeals, was comprised of both current and retired judges, as well as 19 attorneys from private, non-profit, public, and government practice, and from every judicial circuit in the State. The Task Force was charged with developing recommendations – including amendments to court rules – to improve civil litigation in Hawaii.

The Task Force formed its recommendations based on a year-long process of data-gathering, conversations with stakeholders, and careful consideration of the key problems and best solutions. After its inception in July 2018, the Task Force’s four subcommittees considered issues related to case triage, case management, discovery issues, and other possible innovations. The Task Force participated in numerous conferences, panels, and other discussions, including the 2018 Civil Law Forum. It also conducted an extensive survey of all Hawaii State Bar Association members, gathering input from experienced civil litigators representing both plaintiff and defense practices. Most respondents were from small firms, and most – 80% – also had experience practicing in federal court.

After examining and analyzing this wealth of data, in August 2019, the Task Force presented its final report to the supreme court, and a period of public comment followed. The supreme court thoughtfully reviewed the Task Force’s recommendations and public input. After extensive deliberations of its own, on October 8, 2020, the supreme court entered the two orders, which established an effective date of January 1, 2021 for the amendments.¹

Chief Justice Recktenwald, on behalf of the court, expressed the court’s gratitude to Chief Judge Nakamura and the members of the Task Force for their extraordinary work: “We are deeply grateful for the Task Force’s hard work in addressing the formidable task for improving civil litigation and for the careful thought and consideration that went into its recommendations.”

The key changes in the rule amendments are summarized below. Although some areas of litigation are not covered by the court’s orders, such as foreclosures, agency appeals to the circuit courts, and consumer-debt collection, the amendments to the HRCP and the RCCH generally introduce a number of new provisions intended to increase efficiency and reduce costs and delay in civil proceedings in circuit courts.

Scheduling:
The plaintiff has a 14-day deadline, from the date any defendant is served or appears, to request the court to set a date for a scheduling conference.

At least seven days before that conference is held, all parties must submit to the court a scheduling conference statement containing such things as a short statement of the case, jurisdiction and venue arguments, information regarding whether a jury trial has been demanded, argument as to whether the case is eligible for expedited disposition, and a summary of discovery status and related issues.

All parties are required to attend the scheduling conference. With limited exceptions, the judge at that conference must consider the appropriateness of alternative dispute resolution and must set a date for a pre-trial settlement conference.

Following the scheduling conference, the court, absent good cause for delay, must issue a scheduling order within 90 days after the defendant has been served, or within 60 days after any defendant has appeared, whichever is earlier.

This scheduling order must set the date for trial and set time limits for joinder, amendment of pleadings, discovery, and motions, and can also set pre-trial conference dates and deadlines for submission of trial materials, and impose parameters on discovery.

Discovery Issues:
Parties must hold a discovery conference at least 21 days prior to attending the scheduling conference and generally prohibit seeking discovery prior to that discovery conference. At that discovery conference the parties must consider the nature and basis of their claims and defenses and the possibility of resolving the case, arrange for disclosures, and develop a proposed discovery plan, with the duty of good faith imposed upon both sides of the litigation.

Certain initial discovery disclosures must be made within 14 days of that initial discovery conference, including disclosing likely witnesses, copies or descriptions of all documents and tangible items that may be used to support the disclosing party’s claims or defenses, a computation of likely damages, with supporting evidence, and the declaration pages of any insurance agreement which may be liable to satisfy a judgment or act to indemnify or reimburse a party. Parties are not excused from this duty by asserting that the party has not fully investigated the case or that the opposing party has not fulfilled its discovery obligations.

The parties, without awaiting a discovery request, must reveal information no later than 120 days before trial regarding expected expert witness testimony, including written materials pertaining to the expert’s qualifications, and expected testimony, though the amendments also provide trial-preparation protection for counsel’s communications with any expert witness.

The parties may, with the court’s approval, agree to the use of expedited, streamlined discovery through such measures as letter briefing in lieu of traditional motions practice. This process, however, cannot be used unless the parties first confer in person, by video, or over the phone – email is not sufficient – to limit discovery issues.

Expedited Disposition of Some Eligible Cases:
For certain case types, the parties may agree to assign the case to an expedited track, designed to secure the just, speedy, and efficient resolution of the case. The decision of the judge to approve the assignment is based upon overarching values of fairness, cost-effectiveness, and efficiency, and weighs such factors as the readiness of the case for resolution, the number of parties, the likely monetary value of the case, the number and complexity of the issues present, and issues related to discovery and witnesses, including imposing limitations on discovery.

Trial:
Trial must commence within nine months after the initial scheduling conference of expedited-track cases, and within 12 months for non-expedited-track cases.

The parties must submit, no later than seven days before a final pretrial conference, or 14 days before trial if no such conference is scheduled, a pre-trial statement which must include such things as a statement of undisputed facts, a concise summary of disputed facts, a detailed request for relief, points of law, a witness list, a list of trial exhibits, a statement of any unresolved discovery issues, appropriate stipulations, any alternative dispute resolution issues, and an estimate of necessary trial time.

In sum, these new amendments will improve civil litigation in Hawaii’s circuit courts by increasing efficiency and lowering litigation costs, and thereby providing increased access for our citizens to settle their disputes. Mahalo to Chief Judge Nakamura and the members of the Task Force on Civil Justice Improvements for their extraordinary efforts.

¹ Subsequently, the supreme court has entered orders postponing the effective date of the new rules to January 1, 2022.