(In a Nutshell)
Discovery costs have been long recognized as one of the primary sources of civil litigation expenses, and the discovery process often complicates and prolongs matters at bar. However, discovery is a potent and necessary phase of litigation, and it often shapes the exposure and chances of settlement, early on. That said, there are new developments in streamlining this robust phase, attempting to make for a more efficient approach to the discovery-exchange, and at least one method seems to be catching on.
The Mandatory Initial Discovery Pilot Project (MIDP) was approved by the Judicial Conference of the United States on September 16, 2016. The MIDP is designed to test whether early substantial disclosure of information can reduce litigation cost and shorten the time for case resolution consistent with the goals of Rule 1 of the Federal Rules of Civil Procedure (FRCP), which requires the court and parties to employ the rules “to secure the just, speedy, and inexpensive determination” of every case.
The MIDP started in early May 2017 and will last for the next three (3) years. Participating courts have adopted a Standing Order which explains the parties’ obligations under the pilot project and set forth the initial discovery requests to which the parties must respond. All civil cases, except those categories of cases exempt by way of the Standing Order, are included in the pilot project and subject to the Standing Order.
The Standing Order includes a provision that directly addresses the production of Electronically
Stored Information (ESI) and mandates, among other things, that the parties confer and attempt to agree “on matters relating to its disclosure and production,” including:
- requirements and limits on the preservation, disclosure, and production of ESI;
- appropriate ESI searches, including custodians and search terms, or other use of technology-assisted review; and
- the form in which the ESI will be produced.
There are currently two (2) districts participating in the MIDP. On May 1, 2017, the District of Arizona began participating in the MIDP and only cases filed on or after May 1, 2017, are subject to the project. The Northern District of Illinois began implementing the pilot project on June 1, 2017, and only cases filed after that day are subject to the project.
The District of Arizona has adopted General Order 17-08 which explains the parties’ obligations under the pilot project and sets forth the initial discovery requests to which the parties must respond.
Some of the key requirements under the District of Arizona General Order, which are very similar to the Northern District of Illinois’ user manual, are:
- At the Rule 26(f) conference, parties must discuss the mandatory initial discovery listed in the General Order and describe their discussions (including limitations invoked and disputes) in their Rule 26(f) report.
- Parties must provide information relevant to the parties’ claims and defenses, whether favorable or unfavorable, and regardless of whether they intend to use the information in presenting their claims and defenses.
- Parties must file answers, counterclaims, and replies within the time set in Rule 12(a)(1)- (3), even if they have filed or intend to file a motion to dismiss or other preliminary motion(s). There are, however, limited exceptions to this requirement as explained in the General Order.
- Parties must serve their initial discovery responses by the deadlines, described in the General Order, unless modified by the Court.
- Parties must address certain issues relating to Electronically Stored Information (ESI) and produce ESI by the deadline, set in the General Order, unless modified by the Court.
- Pilot judges should hold initial case management conferences within the time set in Rule 16(b)(2) and discusses the parties’ compliance with the mandatory discovery obligations.
Other federal district courts will soon follow, and if the intended impact occurs, it is likely that this program will be expanded.
Under the old method, document production took months to receive after a case had a begun. Further, the production of information was done by specific document request served by either side. With the new MIDP, rather than allowing the parties to wait to produce relevant documents based on whether they are requested or fit a narrowly-tailored data collection, the mandate clearly states that parties must produce both favorable and unfavorable information from the beginning. Failure to comply with these requirements is sanctionable, and the sanctions may include the inability to use certain documents or call certain witnesses.
While parties may be worried that complying with the MIDP will be more costly than before, it intends to actually save the clients’ money in the end. Here, the parties are able to develop a case management plan, and assess the strength of their case(s), at an early point in litigation. Thus, settlement and/or discovery exchange stipulations can reasonably come early, and before costs get out of hand. Moreover, now that the parties have all of the information for discovery from the get-go, the review and assessment will be done well before extensive bills are established on potentially unwarranted legal fees.
For more information on discovery management, or to learn about LITeGATION’s other litigation support services, please contact us at: https://www.litegation.com/contact/