Closing The Loop

Forget “Wonder Woman,” “Transformers 19,” barbeques and days at the beach—your summer months could be characterized by something much more exciting: mandatory initial discovery! On May 1st, the federal court system began an experiment that could reshape the way discovery is done in civil litigation. Under the Mandatory Initial Discovery Pilot Program, a pair of district courts will require parties in most civil litigation to respond to a standard set of discovery requests before undergoing further discovery. 

The goal of the program is to reduce the costs and delay associated with civil discovery. And while the program was kicked off this May, it’s no summer fling; participating courts will engage in the pilot project for three years, in order to see if it’s successful. The results could then influence discovery throughout the federal system. 

 

Reworking the Discovery Process

The MIDPP seeks to “study whether requiring parties in civil cases to respond to a series of standard discovery requests before undertaking other discovery will reduce the cost and delay of civil litigation.”

Mandatory initial discovery isn’t unheard of, either. Mandatory discovery has been used in state civil courts in Arizona for 25 years. The Arizona rules, known as the Zlaket Rules, require parties to make substantial disclosures early on and has been seen to encourage earlier settlement and resolution. The federal pilot program follows a similar procedure.

Under the MIDPP, standard discovery requests, framed as court-ordered discovery, go far beyond the disclosures required by Federal Rule of Civil Procedure 26(a)(1). Parties must disclose information, both favorable and unfavorable, relevant to the claims and defenses in the case. A responding party must provide information relevant to claims or defenses regardless of whether it plans on using that information in its case.

That information includes: 

  • The names, and contact information, of all persons believed to have given written or recorded statements relevant to any party’s claims or defenses
  • A list of relevenant documents and ESI, regardless of whose possession, custody, or control that information is under
  • A statement of facts relevant to the claims and defenses asserted and the legal theories upon which they’re based

The program requires disclosure of information reasonably available at the time, with timely supplements made as additional relevant information becomes available. Where documents are so voluminous that listing them individually is impracticable, categorical descriptions can be used.

Where ESI is at issue, parties must attempt to agree upon:

  • Requirements and limits on ESI preservation, disclosure, and production
  • Appropriate ESI searches, including custodians, search terms, and use of technology assisted review
  • The form in which the ESI will be produced

Once ESI is identified, the party has 40 days after serving its initial response to produce that information.

The program also establishes a series of deadlines for initial discovery. Parties seeking affirmative relief have 30 days after the filing of the first responsive pleading to serve their responses and parties filing a responsive pleading have 30 days from filing to serve their mandatory initial discovery responses. Parties may seek a one-time deferral of 30 days, if they are working towards settlement, or may avoid initial discovery by stipulating that no discovery at all will be conducted in the case.

That's not all. Under the MIDPP, parties must discuss initial discovery during their Rule 26(f) meet and confer, during which they “must seek to resolve any disagreement over the scope of discovery." Any unresolved disputes are to be resolved during the subsequent Rule 16(b) conference.

The initial discovery requirement applies to all but a handful of cases, including complex cases like consumer class actions. Those proceedings that are exempt from initial disclosure under Rule 26, such as patent cases governed by local rules, administrative law disputes, and habeas corpus petitions, remain exempt under the pilot program.

The program could require more work upfront, as parties gather, review, and disclose more information earlier in their case, but advocates believe that it will help reduce the burden of discovery overall.

 

But How Will This Impact Me?

Will the MIDPP upend your discovery process? Not unless you’re practicing in the U.S. District Courts of Arizona or the Northern District of Illinois. These are the only two federal courts engaging in the pilot program, with the D. Ariz. implementing the program on May 1st and the N.D. Ill. starting theirs up June 1st. 

That doesn't mean that the rest of us can ignore the pilot program for the time being, however. This could be the future of discovery, after all, unfolding in Chicago and Phoenix. Smart practitioners will keep their eye on what’s coming, even if it’s not coming for them just yet.

For those who want some extra insight into the MIDPP, the Federal Judicial Center has a fair amount of materials available. For example, on the Fourth of July, as the rest of us were trying to not blow ourselves up with M-80s and Roman Candles, the FJC released its “Mandatory Initial Discovery Pilot Project Model Users’ Manual,” giving a concise yet detailed overview of the program. Other documents of interest include the MIDPP Model Standing Order for implementing the pilot, District of Arizona General Order 17-08 and the Northern District of Illinois Standing Order doing just that, as well as a lengthy discussion with Arizona state judges and practitioners, examining how the similar disclosure requirements have influenced practice in that state over the past quarter century.

Give them a look. They could be describing the future of discovery.

This post was authored by Casey C. Sullivan, Esq., who leads education and awareness efforts at Logikcull. You can reach him at [email protected] or on Twitter at @caseycsull.

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