Cosper v. Rea (2/6/12)

We blogged the Court of Appeals decision here; go there for the facts. The Supreme Court vacates it and holds that the list of witnesses required by Rule 72(g)(1) “can only be supplemented for good cause under Rule 77(g)(4).”

This opinion is largely technical, analyzing the language of the rules. 72(g)(1) requires a list at the time of appeal and (g)(4) specifically says that the court may allow supplements “for good cause shown.” The Court of Appeals decision “obviates” (g)(1). And “defining discovery to include disclosure of additional witnesses” would permit a party to disclose new witnesses up to the 80-day discovery deadline set by (g)(3), which would nullify (g)(4) for 80 days and could be inconsistent with 26.1 (b)(2) (must seek leave to supplement witnesses and exhibits within 60 days of trial.) It might also let a party disclose new witnesses without giving the other party time to depose them.

We criticized the Court of Appeals decision because it encouraged parties to treat arbitration cavalierly. This opinion at least narrows the window: the parties must round up additional witnesses in a month or so (between first learning of the arbitrator’s decision and having to appeal it) rather than almost four (that month plus 80 days of discovery). That’s not at all impossible but raises practical problems and makes it best to plan ahead.

This is a nice, clear, brief opinion. We’re happy and encouraged – and frankly a bit surprised, based on some of his earlier work – to see this from Justice Brutinel.

(link to opinion)