Rule 6. Commercial Court-Appointed Neutrals
Effective July 1, 2024
(A) Appointment.
(1) Definition.
A Commercial Court-Appointed Neutral (“Appointed Neutral”) includes:
a) An attorney;
b) A senior judge; or
c) A non-attorney agreed upon by the Commercial Court Judge and the parties who has special skills or training appropriate to perform the tasks that may be required.
(2) Reference.
A Commercial Court Judge may appoint an Appointed Neutral and refer any matter in a pending Commercial Court Docket case if:
a) All parties to the case consent to the appointment and reference of an Appointed Neutral; or
b) If all parties do not consent, the Commercial Court Judge, after giving notice to the parties and an opportunity to be heard, finds it probable that:
i. Appointment of an Appointed Neutral will materially assist the Court in resolving the case in a just and timely manner;
ii. The anticipated costs associated with the appointment of an Appointed Neutral are proportionate to the value of the case; and
iii. The anticipated costs associated with the appointment of an Appointed Neutral will not be unduly burdensome to any party.
(B) Compensation.
(1) The compensation allowed to the Appointed Neutral must be reasonable. The rate of compensation and the allocation of the cost between the parties must be established by the Court in the Order of Reference with consideration of input provided by the parties and the Appointed Neutral.
(2) The parties are responsible for payment of the compensation of the Appointed Neutral. In a request for an Order of Reference, the parties must agree on the allocation of responsibility for paying the compensation of the Appointed Neutral.
(3) If the parties seek appointment of a senior judge as an Appointed Neutral, the appointment must be approved by the Supreme Court and compensation determined under Trial Rule 53(A).
(C) Powers of the Appointed Neutral.
(1) The Order of Reference to the Appointed Neutral must specify the Appointed Neutral’s powers.
(2) The order of reference may direct the Appointed Neutral:
a) To report only upon particular issues;
b) To perform particular acts;
c) To receive and report evidence only;
d) To fix the time and place for beginning and closing hearings and for the filing of the Appointed Neutral’s report; and/or
e) Anything else the Commercial Court Judge deems appropriate.
(3) Subject to the directions, specifications, and limitations stated in the Order of Reference, the Appointed Neutral has the power to regulate all proceedings before the Appointed Neutral and to take all measures necessary or proper for the efficient performance of the duties assigned under the Order, including but not limited to:
a) Requiring the production of evidence on all matters embraced in the Order of Reference, including the production of records and documents of all kinds, including electronic media;
b) Ruling upon the admissibility of evidence unless otherwise directed by the Order of Reference;
c) Placing witnesses and parties under oath; and
d) Examining witnesses under oath and placing reasonable limits on the examination of witnesses by the parties.
(D) Duty of the Appointed Neutral.
(1) An Appointed Neutral must proceed with all reasonable diligence and within any time frames established by the Commercial Court Judge. On notice to all parties and the Appointed Neutral, any party may apply to the Commercial Court Judge for an order requiring the Appointed Neutral to expedite the proceedings and to make a report by a date certain.
(2) If a party so requests, the Appointed Neutral must make a record of the evidence offered and excluded in the same manner and subject to the same limitations as provided for a court sitting without a jury.
(E) Proceedings before the Appointed Neutral.
(1) Order.
When a reference is made, the Clerk must forthwith furnish the Appointed Neutral and the parties with a copy of the Order of Reference. The Commercial Court Judge may direct counsel for the parties to submit a proposed Order of Reference with the terms of the final order being determined by the Commercial Court Judge in its sound discretion.
(2) Initial Meeting.
Unless the Order of Reference provides otherwise, the Appointed Neutral must set a time and place for the initial meeting of the parties or their attorneys and the Appointed Neutral to be held within twenty (20) days after the date of the Order of Reference. The Appointed Neutral must notify the parties or their attorneys of the date, time, and place of the initial meeting.
(3) Further Proceedings.
The Order of Reference may fix the time and place for further meetings and hearings before the Appointed Neutral. Otherwise, the Appointed Neutral may fix the time and place for further meetings and hearings.
(4) Failure of a Party to Appear.
If a party fails to appear at the time and place fixed for a meeting or hearing, the Appointed Neutral may proceed ex parte or, in the Appointed Neutral’s discretion, may postpone the proceedings to a future date, giving notice to the absent party of the postponement.
(5) Witnesses.
The parties may procure the attendance of a witness before the Appointed Neutral by the issuance and service of a subpoena as provided in Trial Rule 45. If a witness fails to appear or give evidence without adequate excuse, the witness may be punished for the contempt by the Commercial Court Judge and may be subjected to the consequences, penalties, and remedies provided in Trial Rules 37 and 45 upon request of a party or the Appointed Neutral.
(6) Statement of Accounts.
When matters of accounting are in issue, the Appointed Neutral may prescribe the form in which the accounts must be submitted by the parties. In any proper case, the Appointed Neutral may require or receive in evidence only a statement by a certified public accountant who is called as a witness by a party. Upon objection of a party to any of the items submitted or upon a showing that the form of statement is insufficient, the Appointed Neutral may:
a) Require a different form of statement to be furnished;
b) Order oral examination of the accountants regarding the accounts or specific items thereof;
c) Order written interrogatories to be answered regarding the accounts or specific items thereof; or
d) Otherwise direct the parties to provide necessary information.
(F) Report.
(1) Filing a Report.
The Appointed Neutral must prepare a report on the matters or issues submitted by the Order of Reference. The Appointed Neutral must file the report with the Clerk of the Court, who must notify all parties of the filing.
(2) Timing.
The Order of Reference may fix a time for filing the Report. On request of any party or the Commercial Court Judge, the Appointed Neutral must submit the report before the Commercial Court Judge conducts a hearing or takes evidence in a matter.
(3) Reports in Non-Jury Cases.
a) Contents.
Unless the Order of Reference in a non-jury case otherwise directs, the Appointed Neutral must file with the Report:
i. A transcript of the proceedings, including any testimony or statements received; and
ii. All original exhibits, admitted or excluded.
b) Objecting to the Report.
Within ten (10) days after being served with notice of the Report’s filing with the Clerk of the Court, any party may file written objections to the Report and serve them on the other parties.
c) Moving for Action on the Report.
A party may apply to the Commercial Court Judge for action on the report and on objections thereto by motion and upon notice, as prescribed in Trial Rules 5 and 6.
d) Reviewing Factual Findings.
The Commercial Court Judge must accept the Appointed Neutral’s findings of fact unless clearly erroneous.
e) Action on the Report.
The Commercial Court Judge may adopt the Report, reject it in whole or in part, receive further evidence, or return the Report to the Appointed Neutral with instructions.
(4) Reports in Jury Cases.
a) Contents.
In a case to be tried by a jury, the Appointed Neutral may report findings of fact but must not report the evidence.
b) Objecting to the Report.
Within ten (10) days after being served with notice of the Report’s filing with the Clerk of the court, a party may file written objections to the Report and serve them on the other parties.
c) Use at Trial.
The Appointed Neutral’s findings upon the issues submitted are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the Commercial Court Judge upon any legal obligations made to the Report.
(5) Stipulation as to Findings of Fact.
When the parties stipulate that the findings of fact in an Appointed Neutral’s Report are final, only questions of law arising from the Report may thereafter be considered.
(6) Draft Report.
Before filing the Report with the Clerk of the Court, an Appointed Neutral may submit a draft to the parties to receive their suggestions.