Case Management Order in Construction Defect Actions

Given the complexity and size of most construction defect actions, the Case Management Order (CMO) is crucial to the orderly, cost-effective, and efficient adjudication of all the parties' claims. Generally, the CMO is drafted and agreed to by the parties and then signed as an order from the court. In construction defect cases, the homeowners and developer are usually the parties who initiate the CMO. Later parties, such as subcontractors, are automatically subject to the CMO provisions upon their entrance into the litigation.

There are several key provisions contained within most CMOs. First, a timeline is created for the litigation from discovery through settlement or trial. This keeps the matter from languishing due to its sheer size. As each party is added to the litigation, they are supplied a copy of the CMO and must comply with the deadlines noted therein. The CMO timeline gives all parties notice of what will take place on a given day so that adequate preparation can be made. For example, the CMO can set out the days that destructive testing on the subject homes will occur, when site visits will be conducted, when depositions will take place, on what dates the parties will participate in mediation, and when the trial will take place.

Second, a neutral third-party is usually appointed to serve as mediator and facilitate a settlement between the parties. Third, the CMO outlines the discovery process for all parties so that “side” discovery does not take place. For example, the CMO may contain a set of interrogatories that all contractors must answer. The contractors submit their answers, which are then placed in the designated document depository for the action. Thereafter, any party wanting to view the interrogatory answers can just go to the document depository instead of issuing a new set of interrogatories to the contractors. In this same vein, the CMO can require that all parties deposit a copy of any and all documents they possess concerning the construction project into the document depository. This avoids the unnecessary service of multiple requests for production.

CMOs are rarely set in stone and usually provide for the court's power of modification. Though designed to steadily move the litigation along, a workable CMO must have a bit of flexibility to adapt to the needs of the parties. So that endless modifications do not ultimately impinge on the CMO's usefulness, court approval is usually required.

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