Everybody, have you heard? There’s a brand-new dance, and it’s called the Mandatory Initial Discovery Pilot Project.
Not ringing any bells? Yeah, not for me either until someone mentioned it to me during the Chicago Masters Conference in late May. For a development with such a potential profound impact on the future of discovery, I’m truly astounded about the lack of publicity on this new Pilot Project.
In September 2016, the U.S. Judicial Conference approved the MID pilot program “to test the use of robust mandatory initial discovery as a means of reducing cost and delay in civil litigation.” Maryland District Court Judge Paul Grimm explained the purpose of the Pilot in the introductory video for the Pilot:
The Mandatory Initial Discovery Pilot has been designed to test whether early substantial disclosure of information can reduce litigation costs and shorten the time for case resolution consistent with the goals of Rule 1. These objectives are advanced when the parties are better able to make an early assessment of the strengths and weaknesses of their positions. That early assessment will assist the court and the parties in developing a case management plan and a scheduling order that reflect the particular circumstances of the case and may facilitate early resolution of matters before the parties are forced to incur additional discovery related costs and expense, including legal fees.
Effective May 1 and June 1, 2017, respectively, the District of Arizona and the Northern District of Illinois have adopted the MID pilot project for three years. The pilot requires parties to produce all discovery in support of their case (consistent with Rule 26(a)) but ALSO all discovery that is relevant to the opposing parties’ claims and/or defenses. And wait, it gets better — responses have to be filed within 30 days of filing an answer (which everyone now has to do) and documents must be produced 40 days later.
Whoa, talk about a rule change (but without a rule change). In the words of Obi-wan — it’s as if millions of clients’ voices suddenly cried out in terror and were suddenly silenced. I fear something terrible has happened.
Terrible may be open to debate, but it’s safe to say that this new project accelerates discovery exponentially. At first read, this pilot project means that every party must do all of its discovery — including any discovery related to ESI (which is all discovery) — within roughly 100 days of receiving a complaint. That’s a timeline that means parties will have to spend more on discovery, not less. More decisions, more work done faster than the current federal rules require. And the option to avoid discovery all together pending a motion to dismiss is out the window.
This is a game changer for litigants in these courts. At first blush, it seems like the defense will be unable to delay discovery until after a dispositive motion, which usually saves on discovery costs. Will this affect plaintiffs? Will it require a more factual basis before a complaint can be made? This project raises more questions than it has answers. The hope appears to be that parties will do a more thorough discovery of facts earlier on in a case so that a resolution, based on those facts, can be reached earlier. No argument that is a better result for all concerned, especially the American consumer.
Here are the facts as well as some helpful links so you can stay on top of this development in these courts and any others that may adopt the pilot project (my understanding is that the Judicial Conference is actively seeking additional courts to participate in the MID Pilot):
- The MID Pilot requires parties to respond to court-ordered discovery prior to party-directed discovery in civil cases, and to serve mandatory discovery responses 30 days after an answer is filed. Answers must be filed in every case, even where a party is moving to dismiss. (So much for that delaying tactic of kicking discovery until after the MTD is resolved.)
- Hard-copy documents and electronically stored information (ESI) relating to the claims in the case must be produced 40 days after responses are filed. The parties are required to sign the responses and file with the court that the responses have been served. Failure to comply puts the party and the attorneys at risk for sanctions.
- The scope of the mandatory discovery is broader than the Rule 26 initial disclosures and requires that a party “must include information relevant to each party’s claims or defenses, even if unfavorable, rather than only information that a party intends to use to support its claims or defenses.”
- Although there are a few exceptions to the Pilot, all cases are mandatory, and there is no opt out unless the parties agree not to conduct discovery. One 30-day delay is available only if the parties jointly inform the court that they are meeting to attempt to resolve the matter.
- There are only four exceptions to the mandatory initial discovery requirements — pro se cases, PLSRA matters, MDL matters, and patent cases.
The Federal Judicial Center has a website dedicated to the MID Pilot, as do the District Court of Arizona and the Northern District of Illinois. The Federal Judicial Center site includes the Standing Order and User’s Manual for the project as well as several videos for lawyers in the affected courts and model checklists for each court.
For some states, these requirements are not new, but they are to federal court practitioners. Lawyers and clients who anticipate having matters in either of these District Courts should wade into these materials now. You need to know what you have to face when that new matter hits your desk, because you won’t have any time to contemplate strategy before diving into action.
We’ve added the specific court materials to the Northern District of Illinois and the District of Arizona to eDiscovery Assistant and updated those court summaries.
This article originally appeared in Above the Law.