Program Is the First of Its Kind Devoted to Resolving Complex Technological Issues
In 2003, Maryland became the first state in the country to create and staff a specialized trial court dedicated to the resolution of business disputes that involve technology issues. Maryland Rule 16-205 established the Maryland Business and Technology Case Management Program to enable each Maryland circuit court to handle business and technology matters in a coordinated, efficient, and responsive manner. Maryland, which is home to a large concentration of biotech and aerospace companies, hopes the new program will increase the State's reputation as a premier forum for the effective resolution of complex technology disputes. The Hon. Steven I. Platt, Chairman of the Conference of Circuit Judge's Business and Technology Case Management Program Implementation Committee, believes that this specialized approach will be widely emulated in other jurisdictions in the coming years.
Maryland's action implicitly recognizes that as new biological, pharmaceutical, agricultural, electronic, digital, and computer technologies have manifested themselves in industrial and commercial applications, courts have had increasing difficulty understanding and adjudicating the nuances and complexities of disputes relating to these innovations. Despite the increasing specialization of technically savvy advocates presenting these issues on behalf of their clients, generalist trial judges often lack the time, knowledge, and inclination to understand the underlying scientific and technical issues posed in these cases.
In an effort to remedy this situation, new Maryland Rule 16-205 requires each Circuit Court in the state to create a special "track" for business and technology cases and a procedure for assigning cases to that track; to assign specific judges to the Program who are, or will be, trained in business and technology matters; and to develop alternative dispute resolution ("ADR") proceedings to be conducted by individuals with special proficiency in business and technology. [1] Twenty three judges, representing each Circuit Court, have now been assigned to the Program. Although as of November 2003, only 40 cases have been filed under the Program, that number undoubtedly will increase as more lawyers and litigants learn of the court's advantages.
What Types of Cases Will Be Referred to the Business and Technology Court?
As the name of the Program implies, each Circuit Court will consider cases that the Circuit Administrative Judge determines present commercial or technological issues of such a complex or novel nature that specialized treatment is likely to improve the administration of justice. [2] Complex commercial or business litigation that does not relate to technology or science may also be referred to this specialized court, but it is the technical elements of the court's mandate that will likely draw the most interest.
Actions may be assigned to the Program upon written motion of a party or on the court's own initiative. [3] Rule 16-205 sets out a number of factors that the Circuit Administrative Judge may consider in making the determination to assign a case to the program: (1) the nature of the relief sought; (2) the number and diverse interests of the parties; (3) the anticipated nature and extent of pretrial discovery and motions; (4) whether the parties agree to waive venue for the hearing of motions and other pretrial matters; (5) the degree of novelty and complexity of the factual and legal issues presented; (6) whether business or technology issues predominate over other issues presented in the action; and (7) the willingness of the parties to participate in the ADR procedures. [4] Once assigned to the court, cases are assigned to a specific Program judge who shall hear all proceedings until the matter is concluded. [5] At the first scheduling conference, the judge schedules discovery, mandatory ADR, and a trial date. [6] The Court expects to resolve disputes expeditiously through the ADR process or trial.
The types of complex commercial disputes that likely will be assigned to the program include those involving:
- technology development and ownership;
- software consulting agreements;
- network and Internet web site development and maintenance agreements;
- hosting of Internet web sites for business entities; and
- technology licensing agreements, including software and biotechnology licensing agreements or any agreement involving the licensing of any intellectual property rights, including patent rights.
New Courtroom Technologies Are Planned to Increase Efficiency
The courtroom technologies that Maryland may acquire for the Program include: electronic filing ("e-filing") and virtual docketing; on-line repositories of evidentiary materials (digital images of documents and exhibits for use by parties and hearing officers); multimedia briefs with digital, video, or computer animation clips and active Internet links for references to the record and/or case law; double blind bid and offer software allowing parties to post double-blind settlement offers on a highly secure web site; NetMeeting Internet conferencing and document collaboration capabilities; and video conferencing. [7]
The Program anticipates the implementation of e-filing next year, based on the model already adopted by the Circuit Court for Baltimore City to manage its asbestos cases. There is also an Internet web site linked to the Maryland Judiciary Internet homepage where the judges will publish their opinions for public review. This will provide lawyers, litigants, and other judges factual and legal analyses that will provide predictive information and promote consistency in rulings on complex issues. [8] Other technologies will be implemented in specific phases as resources become available.
Specialized Courts May Be More Effective in Resolving Complex Disputes
Ten other states have already developed specialized courts or tracks for business litigation, and the response from businesses and lawyers handling business litigation has been overwhelmingly positive. [9] Most observers believe that specialized courts handle complex commercial litigation in a more efficient, effective, and predictable manner. In Maryland, removing complex technology and business disputes from the general court docket will allow the specially trained and technologically competent judges in the Business and Technology Program to focus on the complexities of the matters before them and other judges to concentrate their attention on other matters.
Maryland will provide specialized technical training and education for the judges and ADR professionals assigned to the court to make it easier for technology businesses involved in a dispute to communicate their positions in their own language. Indeed, the judicial education component to the Program has already begun. All designated Program Judges from the various Circuit Courts had three days of multi-disciplinary training in 2003, and an additional three days of training are planned for 2004. The judges' training consists of workshops and courses ranging from the use of technology in managing business litigation, to complex commercial law, technology contract law, intellectual property law, and computer/cyberspace law. Because judges in this program will have greater facility with corporate law and technology issues, they are likely to make better-informed and consistent decisions.
Specialized training for clerks and staff assigned to the Program also has been designed and will be implemented in the Spring of 2004. This training should further increase the Program's efficiency.
Finally, parties may enjoy a higher rate of settlement of business and technology disputes because of the increased involvement of experienced and technologically competent court-appointed ADR professionals. The Program Implementation Committee has proposed that the ADR process include the innovative use, where appropriate, of a "Neutral Expert" to provide the ADR professional and/or the parties with technical background information or an opinion on specific issues related to their dispute. [10]Judge Platt also notes that new ADR Rules have been approved by the Conference of Circuit Judge's Rules Committee and are awaiting approval by the Court of Appeals. If adopted, these rules provide for separate and rigorous qualifications for ADR professionals in the Business and Technology Case Management Program that will ensure that participating mediators and arbitrators are of the highest possible caliber.
Advocates Familiar With The New Program Can Make the Difference
Lawyers in Dorsey's IP Litigation Group are experienced trial advocates who combine their technical and courtroom expertise to effectively and efficiently serve their clients needs. The commercial and IP trial lawyers in Dorsey's Washington, D.C. office regularly practice in Maryland state courts, and their knowledge of that state's rules and practices and their experience in technology disputes give Dorsey's clients an important advantage.
[1] See Md. Rule 16-205(b)
[2] See Md. Rule 16-205(c).
[3] Id.
[4] Id.
[5] See Md. Rule 16-205(d).
[6] See Md. Rule 16-205(e).
[7] Id. at 17.
[8] Ten opinions have already been submitted for publication online and will be available soon on the Court's web site, http://www.courts.state. md.us/businesstech/opinions.html.
[9] Wilbur D. Preston et al., Maryland Business and Technology Court Task Force Report (2002) at 5. This 30 page report, prepared by a blue ribbon panel of legal, business, and technology experts appointed by the Maryland General Assembly, was the basis for the adoption of Rule 16-205. To view the entire report, see www.courts.state.md.us/finalb& treport.pdf.
[10] Hon. Steven I. Platt et al. Conference of Circuit Judges Maryland Business and Technology Case Management Program Implementation Committee Final Report (2003) at 2.