On November 20, 2019, Kentucky’s Supreme Court issued an order detailing the “Rules of Practice for the Jefferson County Business Court Docket Pilot Project.” A copy of the order can be found here. We have previously posted on the development of this Louisville based business court, and the initial designation of Judges Angela McCormick Bisig and Charles L. Cunningham, Jr. as the first Kentucky business court judges.
A link to Kentucky Supreme Court Deputy Chief Justice Lizabeth T. Hughes discussing the new business court can be found here.
The Rules of Practice include the following general sections:
- Eligibility for the Business Court Docket
- Early Scheduling and Case Management
- Miscellaneous Rules
The details in the Supreme Court’s order show a deliberate and well-planned design covering the business court’s jurisdiction and case assignment practices, as well as a wide range of highly specific case management protocols.
There are sixteen case type categories defining the business court’s jurisdiction, and a seventeenth category for “Claims involving a Business Entity or Business Interest not included above, or excluded under BCR 2.2 below, that otherwise should be considered eligible for assignment to the Business Court, in the discretion of the Business Court.” The inclusion list further identifies a considerable number of Kentucky statutes. You can read the rule for the specifics, but one interesting inclusion is: “Business Class Actions not brought by Consumers, with the exception that Complex Consumer Class Actions are eligible….” The Rules of Practice also include eighteen categories of excluded case types.
Significantly, this is not a voluntary program. Rather, civil cases properly venued in Jefferson County “shall be assigned to the Business Court Docket if the Gravamen of the dispute relates to any” of these 17 included categories.
The plaintiff must identify business court cases, and electronically file the case as a business court case. The rules lay out the means for defendants to object to a business court assignment. The rules further define procedures for defendants seeking to move a case into the business court. This includes a requirement that before moving for reassignment defense counsel must communicate directly with plaintiff’s counsel in an effort to reach agreement.
The rules also contemplate the possibility that a counterclaim might give cause for reassignment. They further permit non-business court Jefferson County judges to sua sponte refer cases to the business court.
There are two business court judges. If one must recuse, the case goes to the other. If both must recuse, the case goes onto the general docket, with the recommendation that the new judge follow the business court rules.
The case management rules begin with the following principles:
“All parties shall communicate in good faith and attempt to agree to an appropriate and thorough case management plan, including review of novel and creative approaches that may assist the efficient and just resolution of the case. The Business Court Docket judge has wide discretion in implementing an appropriate case management plan and adopting reasonable processes designed to achieve an efficient and just resolution of disputes, including deviating from the Jefferson County Business Court Docket Rules of Practice where it deems appropriate.”
The initial case management meeting between counsel must occur no more than 45 days after a business court assignment. Topics include anticipated motion practice, scope of discovery, discovery topics and duration, ESI, amendments, expert reports, trial dates, confidentiality/protective orders, choice of law, mediation and ADR, frequency of case management conferences with the court, the use of special masters and referees, the benefits of client attendance at case management conferences, and dates for case management conferences with the court.
The parties must file a joint case management report no more than 15 days after the meeting, and the case management conference with the court is to take place within 60 days of the case management meeting, after which the court will issue its case management order. The rules include a form template for case management reports.
The Rules of Practice also address special masters and discovery referees (BCR 5.1), posting of opinions and dispositive orders (BCR 5.2), motion hearings (BCR 5.3), unopposed motions to enlarge deadlines (BCR 5.4), telephone conferences to address housekeeping matters or more complex matters in appropriate circumstances (BCR 5.5), use of emails by or with the court (BCR 5.6), and confidentiality/protective orders (BCR 5.7).
The order also includes guidelines for appointing special masters and discovery referees.
Our thanks to Kentucky attorney Thomas E. Rutledge for bringing the new order to our attention.