UPDATED JULY, 2019
If you handle civil cases before federal courts, the United States Judicial Conference may have pushed the fast forward button on your discovery. Last fall, it approved a pilot program requiring mandatory, expedited disclosure and production of most relevant information before parties engage in their own discovery.
The Mandatory Initial Discovery Pilot (MIDP) is being tested by some federal judges in the Northern District of Illinois and Arizona. The pilot program requires parties to serve mandatory discovery responses 30 days after an answer is filed and produce all hard copy documents and electronically stored information (ESI) relating to the claims in the case 40 days after that.
Pilot Adopted to Encourage Settlement and Curtail Litigation Costs
In September, 2016 the U.S. Judicial Conference approved the test pilot program to determine whether mandatory early disclosure of substantial information reduces litigation costs and encourages resolution of claims. According to the MIDP “Users Guide”, the Judicial Conference based the MIDP on similar programs successfully implemented by state and Canadian courts.
As explained by Maryland District Court Judge Paul Grimm in this introductory video, it is hoped that mandating discovery of information at the beginning of a case will better position parties to assess the strengths and weaknesses of their claims earlier in a case before incurring significant litigation costs.
No Opt Out and Few Cases Exempted
The MIDP is implemented via standing order. The order specifically states parties may not opt out, that its requirements supercede disclosure requirements in Rule 26(a)(1) and nearly all civil cases are subject to early disclosure requirements except:
- Multidistrict Litigation (MDL)
- Cases Under the Private Securities Litigation Reform Act (PSRLA)
- Cases under Rule 26(a)(1)(B)
- Administrative Record Review
- In Rem Forfeiture
- Habeas Corpus Petitions and Pro Se Prisoner Cases
- Action to Quash Administrative Subpoena
- Actions to Enforce Arbitration;
- Actions by the United States to recover benefit payments and student loans
Thirty Days to Serve Initial Responses
Parties seeking affirmative relief (i.e. complaint, counterclaim, crossclaim or third party complaint) must respond to mandatory discovery within 30 days from a response to their pleading. A party filing a responsive pleading must serve their initial discovery responses within 30 days of its filing.
Initial discovery responses are not filed with the court, just notice that they were served. Of note is that parties may have to file more than one mandatory initial disclosure, such as in a case where a plaintiff adds defendants after filing an initial complaint.
The 30 day period may be deferred one time for if the parties jointly certify they are trying settle the case. The only way to avoid MIDP requirements entirely is by court approved stipulation stating no discovery will be conducted.
Duty to Supplement
The parties’ mandatory discovery obligations are ongoing and supplemental responses are required upon discovery of new or additional information. Supplemental responses must be served within 30 days from when the party learns new information. However, if new information is revealed in deposition or in written discovery, no supplementation is required.
The MIDP standing order notes that the court should set a hard deadline for supplemental responses and that deadline should be no later than 60 days before a final pretrial conference, or, if the is no final pretrial conference, no later than 90 days before trial.
Responses Based on Reasonably Available Information and Not an Admission
Initial responses in MIDP cases are based on reasonably available information and the obligation to respond is not excused for incomplete investigation or because a party believes an adversary’s responses are insufficient. Parties must sign the responses under oath and certify they are complete and correct at the time based on the party’s knowledge, information, and belief.
Important to note is that all information, good or bad, relevant to the parties’ claims or defenses must be disclosed, and regardless of whether they intend to use the information at trial.
The standing order also makes clear that production of information in response to the mandatory discovery is not an admission of relevance, authenticity or admissibility. If a party limits a response based on attorney client privilege or work product, the party must produce a privilege log unless agreed otherwise or by court order. If a response contains an objection, such as one for proportionality, it must explain with particularity the basis and nature of the objection and describe the withheld information.
Answers Required in Every Case
Initially, the MIDP required answers to be filed in every case–even when motions to dismiss were filed. The theory being it would help identify issues early in a case facilitating early discovery and potential settlement. However, in December 2018, the Northern District of Illinois amended the MIDP and now answers may be deferred until after resolution of motions to dismiss.
Rule 26 Conference and Report
Under MIDP rules, at the Rule 26(f) conference, parties are expected to discuss the mandatory discovery requirements and resolve any disagreements about the discovery.
The standing order also requires parties to describe in their Rule 26(f) reports discussions between counsel about the mandatory initial discovery and note any objections to discovery and any outstanding disputes. The court must then address any outstanding discovery disputes at the initial case management conference.
Content of Responses
The following must be disclosed in response to the Mandatory Initial Discovery Requests:
- Identities and contact information for all persons believed to have discoverable information relevant to the case along with a description of the information.
- Identities and contact information for persons who gave statements relevant to the case with copies of the statement or information about the person in possession of the statement.
- A list of all documents and ESI related to the case. If voluminous, the documents may be grouped into categories (described with particularity). If the party responding to the initial discovery does not have possession of the information, the custodian must be identified.
- A statement of facts relevant to the responding party’s claims and defenses.
- A computation of any damages claimed.
- Any insurance or agreement providing potential coverage for the case.
If a party believes that responses are deficient, they may request more detail and, if further discovery is authorized, the party may request to inspect information described in the initial responses. According the MIDP “Users Manual” although the rules are written in a way to prevent parties from providing evasive responses, “[a]t the same time, the disclosures need not be so detailed that they would impose on the responding party disproportionate burden or expense, considering the needs of the case. There is no formula for deciding where the line must be drawn.”
Production of Documents and Electronically Stored Information
Under MIDP rules, any ESI and hard copy documents must be produced 40 days after service of the initial response. Additionally, before production, the parties are required to meet and confer and reach agreement on preservation of information, search and collection methodologies, custodians and the format in which the ESI will be produced.
Hard copy documents are to be produced as they are kept in the ordinary course of business and unless otherwise agreed by the parties or ordered by the court, ESI need only be produced in one form, but should be in the form specified by the requesting party. If no form is specified, ESI must be produced “in any reasonably usable form that will enable the receiving party to have the same ability to access, search, and display the ESI as the producing party.”
As noted in the MIDP “Users Manual”, courts may sanction lack of compliance and Rule 37(b)(2) provides the most relevant sanctions (sanctions for “Not Obeying a Discovery Order”). However, the manual also notes that judges should tailor the sanctions to “fit the offense with the intent of encouraging future good faith compliance with the Standing Order and MIDP.”
For attorneys practicing in courts participating in the MIDP, the following resources may be helpful: