Next, I propose restructuring the manner in which the Discovery Commissioners function, as described in a prior post. As things presently stand, there is no established standard of review for objections to Discovery Commissioner rulings. The goal of these changes is to introduce a standard of review that would hopefully make the process more predictable. The suggested changes are motivated by the manner in which federal Magistrate Judges operate.
Standard of Review for Objections.
(c) If a party files a timely objection to a discovery commissioner’s order, the district court rules upon it. The district court may reconsider any non-dispositive discovery commissioner’s order where the order is clearly erroneous or contrary to law. If the discovery commissioner’s order is case dispositive, the district court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. The district court, using either standard of review, may accept, reject, or modify, in whole or in part, the findings or recommendations made by the discovery commissioner. The district court may also receive further evidence or remand the matter to the discovery commissioner with instructions. Source: 28 U.S.C. § 636(b)(1)(A), (C)
Waiver of Appeal.
(d) A party may not assign as error on appeal a defect in a discovery commissioner’s order not timely objected to. Source: FRCP 72(a)