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A preliminary review of the Mandatory Initial Discovery Pilot Program
As those who regularly litigate in federal court in Chicago know, the Northern District of Illinois is participating in the Mandatory Initial Discovery Pilot Program (“MIDPP”) with the support of the Federal Judicial Center.1 Along with the District of Arizona, the MIDPP launched in the Northern District on June 1, 2017. The three-year pilot program applies to all civil cases filed thereafter, except for multi-district litigation, those brought under the Private Securities Litigation Reform Act, patent cases, and cases exempt by Federal Rule of Civil Procedure 26(a)(1)(B).2 A majority of district court judges and all magistrate judges are participating in the MIDPP.3
The MIDPP was approved at the 2016 Judicial Conference and endorsed by Chief Justice John Roberts who emphasized the district judge’s role in early and effective case management. He indicated that the MIDPP was designed to emphasize effective use of the 2015 amendments to the Federal Rules of Civil Procedure and to improve case management to promote Rule 1 which requires that the Federal Rules be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.
The MIDPP supersedes the initial disclosure requirements of Rule 26(a)(1),4 borrowing from Arizona state civil procedure rules that have been in place for 25 years and are designed to test whether early substantial disclosure can reduce costs and expedite case resolution.
With over half a year of the pilot program behind us, a review of the nuts and bolts of the MIDPP and a look at its practical application are in order.
Navigating the MIDPP5
A few key differences in practice that are required under the MIDPP include:
• Parties must file answers, counterclaims, and cross-claims in accordance with Federal Rule of Civil Procedure 12(a)(1)-(3) regardless of whether a motion to dismiss or other preliminary motion is filed or anticipated to be filed, with limited exceptions.6
• All parties must serve their mandatory initial disclosures 30 days after the first responsive pleading is filed and file notice of service with the court.
• The mandatory initial disclosures must be discussed at the Rule 26(f) conference and included in Rule 26(f) reports.
• Parties must produce information as to facts and documents that are relevant to the parties’ claims and defenses, whether favorable or unfavorable, and regardless of whether they plan to use such information.
• Electronically stored information (“ESI”) must be produced 40 days after the mandatory initial disclosures are filed – 70 days after the first responsive pleading is filed.
• Any additional discovery – interrogatories, document production, requests for admission, and depositions – is ongoing after the mandatory initial discovery is served.
• The mandatory initial discovery disclosures may be deferred once for 30 days, if the parties certify that they are seeking to settle the dispute with a good-faith belief that the dispute will be resolved within 30 days of the due date of their disclosures.
• The parties are exempt from providing the mandatory initial disclosures if the court approves a written stipulation by the parties that no discovery will be conducted in the case.
• A party is not excused from providing its initial disclosures because it has not fully investigated the case, challenges the sufficiency of another party’s disclosure, or because another party has not provided its disclosures.
• If a party limits the scope of its disclosures on the basis of privilege or work product, the party must produce a privilege log as required by Rule 26(b)(5) unless the parties agree or the court orders otherwise.
• If a party limits its response on any other basis, including an objection that providing the required information would involve disproportionate expense or burden, it must explain with particularity the nature of the objection and its legal basis, and provide a fair description of the information being withheld.
The MIDPP’s Impact Thus Far
While formal evaluation of the MIDPP’s implementation in the Northern District of Illinois is expected within the first year of the pilot, the court and practitioners are only eight months in to this experiment. Awaiting the court’s review, we focus on anecdotal feedback and publicly available information. Some defense attorneys assert that the MIDPP puts them at a disadvantage and have advised clients not to remove cases – particularly class actions that have voluminous discovery – to the Northern District of Illinois, even when the court has jurisdiction and it would be the more convenient forum. That trepidation appeared to play out in the number of cases filed in the Northern District in the second half of 2017. A PACER search revealed that almost 800 fewer cases were filed from June 1, 2017 to December 31, 2017 than were filed during the same time frame in 2016.7
Despite the reduction in cases and apparent apprehension by some attorneys, the day-to-day impact of the MIDPP has not been as disruptive to the early stages of litigation as anticipated. A search of the dockets in the Northern District of Illinois revealed that almost all judges participating in the pilot program have granted motions for extensions of time to answer, thereby extending the initial disclosure timeline. Further, some judges have granted motions to extend the mandatory initial disclosure deadline or to stay the disclosures all together. Many judges are using their inherent discretion to implement the pilot program and grant reasonable extensions to the mandatory initial disclosure deadlines when appropriate. While it may be some time before there is a formal report on the effectiveness of the MIDPP, it seems that the judges are allowing for a reasonable implementation.
A Few Practice Pointers
One thing is for sure, both plaintiffs and defendants will benefit from having a clear understanding of what the mandatory initial disclosures require, and the scope of information and documents in their possession. While the court appears to have been flexible at the outset of the program (e.g., by issuing orders gently reminding defendants to file an answer after a motion to dismiss was filed), such leniency may not last. Accordingly, litigants benefit themselves and their clients when they:
• Engage in early client counseling regarding the MIDPP requirements, particularly as it relates to early discovery and ESI.
• Conduct a thorough investigation prior to filing suit to determine whether litigation in federal court is most effective.
• Take note of any opportunities to provide the district with feedback regarding the effective or ineffective application of the MIDPP to a particular case.
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