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July 11, 2017
The Critical Role of Sampling in Discovery
July 27, 2017

New Mandatory Initial Disclosures Could Radically Change Discovery

The United States Judicial Conference is piloting a new discovery program in the Northern District of Illinois (Chicago) and the District of Arizona that could force radical change on litigation procedures as well as discovery culture. Referred to as the Mandatory Initial Discovery Pilot (MIDP), the program is designed to “accelerate the disclosure of relevant information that would be produced later in litigation in response to traditional discovery requests.” The MIDP compels parties at the outset of a matter to identify relevant information – “whether favorable or unfavorable” – as part of their newly augmented initial disclosure obligations. Other significant features of the program that affect discovery include:

  • A 40-day period to produce responsive electronically stored information (ESI)
  • Resolution of disclosure objections at the Rule 16(b) scheduling conference
  • Emphasis on sanctions to curb noncompliance

Substantially Broader Disclosure Obligations

The MIDP imposes substantially broader disclosure obligations on parties whose cases fall within its ambit.[1] In addition to basic disclosures about documents, witnesses, damages, and insurance, the MIDP now requires litigants to:

State the facts relevant to a party’s claims or defenses, together with any supporting legal theories.

Identify all people “likely to have discoverable information relevant to any party’s claims or defenses,” together with a description of the information they would have.

Identify the documents and ESI “relevant to any party’s claims or defenses.”[2]

Regarding document productions, the MIDP provides parties with the option of producing paper documents instead of providing a written description of those documents. With respect to ESI, the MIDP imposes a meet and confer obligation among the parties to address scope, search methodologies, and production formats.

Accelerated Time Periods for Disclosure

The MIDP includes accelerated time periods for disclosure to ensure that relevant information is turned over at the outset of a case instead of being “produced later in litigation in response to traditional discovery requests.” Plaintiffs and defendants must serve their mandatory initial disclosure responses 30 days after the first responsive pleading is filed. For parties subsequently added through counterclaims or cross-claims, their responses must be served 30 days after they file their responsive pleadings. If paper documents are to be produced in lieu of identification, they must also be turned over at that time. As for ESI, the MIDP provides a 40-day period in which to complete production. Significantly, no provisions are made for time extensions or rolling productions.[3]

Objections, Rule 26(f) Discovery Conference, and Rule 16(b) Scheduling Conference

Parties may serve objections in connection with their mandatory initial disclosure responses. Those objections must be specific in nature and provide a “fair description of the information being withheld.” At the Rule 26(f) conference, the parties must make an effort to address those objections and other areas of disagreement. All discovery issues relating to the MIDP – both resolved and unresolved – must be described in the Rule 26(f) report the parties file with the court.

Those issues are then to be resolved by the court in the Rule 16(b) scheduling conference. The MIDP spotlights the need for active judicial case management, beginning with the 16(b) conference: “It is difficult to overestimate the importance of this initial case management meeting with the parties. It enables the MIDP judge to set the tone for the rest of the case . . . and clearly establish that the MIDP judge intends to enforce [the MIDP] obligations vigorously.”[4]

Sanctions

The MIDP encourages courts to enforce its mandatory disclosure provisions through sanctions against non-compliant parties and their counsel. The Northern District of Illinois’s Standing Order Regarding Mandatory Initial Discovery Pilot Project and the Mandatory Initial Discovery Users’ Manual for the Northern District of Illinois respectively identify Rule 37(c)(1) and 37(b)(2) as applicable sanctions provisions. According to the Users’ Manual, “diligent enforcement” – including sanctions – “is the key to achieving the goals of the MIDP.”

Conclusion

In summary, these provisions and others represent a sea change over the current regime, which requires parties to disclose only documents and witnesses that may be used to support their claims or defenses. Indeed, the MIDP requirements are more akin to disclosure in the United Kingdom (England and Wales) than traditional discovery in the U.S.

While only a pilot program in two jurisdictions, the MIDP presents both risks and opportunities. Counsel representing clients affected by the MIDP should analyze its requirements and consider strategies, methods, and technologies for better ensuring compliance. By so doing, they may be able to fulfill the objective envisioned by the Judicial Conference when it enacted this program: to obtain “early resolution of matters before incurring additional legal fees.”[5]

 

[1] Various cases are exempted from the MIDP requirements. See Standing Order Regarding Mandatory Initial Discovery Pilot Project, p.1.

[2] Id. (emphasis added).

[3] There are only three narrow exceptions for delaying the service of mandatory initial disclosure responses. See Mandatory Initial Discovery Pilot Project Checklist, p.2.

[4] Mandatory Initial Discovery Users’ Manual for the Northern District of Illinois, p.11.

[5] Id. at 3.

Philip Favro
Philip Favro

Philip Favro acts as a trusted advisor to organizations and law firms on important questions surrounding discovery and information governance. Phil provides guidance on litigation hold policies, data collection strategies, and search methodologies. He also offers direction to organizations on records retention policies and the need to manage dynamic sources of information found on smartphones, cloud applications, and social networks.
Phil is a thought leader and a legal scholar on issues relating to the discovery process, the confluence of litigation and technology, and information governance. His articles have been published in leading industry publications and academic journals and he is frequently in demand as a speaker for eDiscovery education programs.
Phil is a member of the California and Utah bars. He actively contributes to Working Group 1 of The Sedona Conference where he serves as the Project Manager for the Steering Committee. Phil also serves as the Director of Legal Education for the Coalition of Technology Resources for Lawyers (CTRL). Prior to joining Driven, Phil practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.

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