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The Mandatory Initial Discovery Pilot Year One: An (Unscientific) Study

Photo of Everett McKinley Dirksen United States Courthouse in Chicago ILND MIDP

Photo of Everett McKinley Dirksen United States Courthouse in Chicago – by Ken Lund

A little more than a year ago, federal courts for the Arizona District and the Northern District of Illinois adopted the Mandatory Initial Discovery Pilot Program (MIDP).


In short, the MIDP requires litigants in most civil cases to disclose certain categories of information (such as witnesses, damage computations and a list of documents relevant to the case) 30 days after a responsive pleading is filed. The MIDP also requires parties to produce documents and electronically stored information (ESI) 40 days later.


Or stated another way, the MIDP is “Federal Rule of Civil Procedure 26(a)(1) on steroids” as Judge Robert Dow recently described it at a program examining the first year of the MIDP. (Here is a more detailed analysis of the MIDP).

The United States Judicial Conference is giving the MIDP a test run in Arizona and Illinois to determine whether mandatory early disclosure of key information reduces cost and encourages settlement. The rationale being that forcing parties to produce important information and discovery at the beginning of litigation might help them assess the strengths and weaknesses of their claims before incurring significant litigation costs.


To take the temperature of attorneys with cases subject to the MIDP, the Northern District of Illinois surveyed attorneys with cases in the pilot project. The survey produced interesting results. In sum, it appears more lawyers view the program negatively than positively and believe the burdens of expedited discovery outweigh any benefits. But…many also acknowledge the MIDP forces attorneys and their clients to examine the strengths and weakness of cases earlier in litigation.


While the Arizona court did not yet survey its bar, if it had, the results may not be as negative. Arizona state courts instituted a similar discovery program several years ago and Arizona attorneys are more accustomed to early disclosure requirements.


Illinois Survey Says: the MIDP May Not Expedite Settlement


The survey garnered 513 responses and while not 50/50, responses were somewhat evenly distributed between plaintiffs (41%) and defendants (56%).


Although a main goal of the MIDP is to facilitate early settlement of cases, out of the 513 survey responses, in only 31% of the cases (161) did either party attempt to settle the case. Also interesting is that despite a majority noting timely compliance with the initial 30 day disclosure deadline only 22% of the respondents reported that the parties produced electronically stored information within the 40 day MIDP deadline.


More (Illinois Attorneys) Have a Negative View of MIDP Than Positive


Based on grumblings here and there from attorneys we helped with document reviews subject to MIDP requirements, I knew many attorneys were not immediate fans of the program. But still, I was a little surprised by the extent of negative sentiment revealed by the survey: 65% of the respondents stated they did not believe the benefits of the MIDP outweighed the costs and burdens imposed and the overwhelming majority–85% stated they did not believe that the Pilot Program facilitated early settlement. Roughly half of the respondents believe the MIDP increased costs and 37% thought it had little impact.


Consistent with answers to other questions on the survey, when asked “[o]n a scale of 1-10, what is your opinion of the Court’s Standing Order (With 1 being the least favorable and 10 being the most favorable)?” nearly half (49%) had a negative view (1-4) of the program, 15% were neutral (those answering 5) and only 36% has a positive view of the program.


The negative feedback piqued my interest so I did some digging into the survey responses and attended a program discussing the survey results sponsored by the Chicago Chapter of the Federal Bar Association (because who can resist the excitement of an hour and half discussion on potential changes to civil procedure rules?).


To learn more about the complaints about the MIDP, I took a look at responses to a few survey questions asking respondents to elaborate on their answers:


  • Do you believe the benefits of the MIDP outweigh the costs and burdens imposed on the parties and counsel?


  • Do you believe the MIDP had any positive or negative effects on your relationship with your client?


  • To the extent not covered in the survey, what impact did the MIDP have on the cases you handled?


As expected, responses and reasons for the responses varied, but there were a few noticeable trends and certain sentiments were more prevalent than others. Admittedly, my analysis was not scientific and trying to fit the responses into general buckets does take a little subjectivity, but there was definitely a recurring theme to many responses.


Increased Burden, Increased Cost and Unnecessary Work


Across all three questions above, by far the most frequent response was that the MIDP increased work and costs. More than a few answers stated that the MIDP created work that might not otherwise have been done or, it created duplicative work that would happen during traditional discovery. (MIDP requirements occur prior to voluntary party-based discovery).


While a couple responses stated that MIDP requirements burdened plaintiffs more than defendants, that was definitely not the prevailing view. Far more respondents believed that the MIDP burdened defendants more. (In fact, some of this sentiment was shared by respondents who appeared to represent plaintiffs).


That defendants have to do more to comply with MIDP requirements is not surprising. That is generally true in discovery overall. Defendants generally possess more discoverable information. However, several responses indicated that not only did the burdens of the MIDP fall more on defendants, they also believed program requirements caused their defendant clients to spend money they would not have otherwise spent.


For instance, there were a few complaints about having to deal with discovery even if a motion attacking the pleadings is filed. One respondent noted


This system is highly prejudicial to defendants, as they are required to file motions to dismiss, answer the complaint, AND produce all documents within a short period of time. It permits a plaintiff to hold a defendant hostage and demand higher amounts, which makes settlement even less likely.


Seventh Circuit Judge Amy St. Eve, one of the panelists at the Federal Bar Association program on the MIDP I attended, acknowledged complaints from the defense bar about having to file an answer and produce documents even if a motion to dismiss the complaint is filed. “We hear you. We know you don’t like that part of it,” she said, but also pointed out that in the Seventh Circuit, motions to dismiss are rarely granted with prejudice in the first go around. Ultimately, the vast majority of pleadings pass muster after amendment, so an answer is eventually filed in most cases involving a motion to dismiss.


Short Deadlines and Feeling Rushed


Another recurring theme in the survey responses was that MIDP deadlines did not allow adequate time to properly address and handle the discovery at issue. Similarly, several respondents indicated it caused their clients to perform discovery fire drills right out of the gate.


Exchanging information at this stage only creates more work for the parties and the lawyers – the parties are rushed to exchange it and it only duplicates discovery or requires more work at discovery to parse out what’s already been produced. The early production is also somewhat bare-bones.


In complex cases of this type, time is needed to thoughtfully and completely respond to discovery. Mandatory deadlines of this type arbitrarily accelerate the deliberative process without consideration of the nature and type of discovery to be conducted.


Survey Says: Not All Cases Compatible With the MIDP


Several respondents believed cases they handled were not suited for MIDP requirements. Specifically, attorneys handling complex cases such as class actions and ERISA cases argued they should be exempt.


For ERISA delinquency matters, MIDP will increase the amount of attorneys’ fees which may make resolution more difficult if the matter progresses beyond the early

The goal of typical ERISA cases is for a quick, streamlined, and efficient litigation process with the Court almost always relying on the administrative record. The MIDP imposes unnecessary costs, delays, and issues that were not issues prior to the MIDP. Thus, most ERISA litigation attorneys I have talked to believe that there should be a further directive to exempt ERISA cases from the MIDP.


That not all cases fit well into the MIDP was acknowledged both by Judge St. Eve and Judge Dow, who was also a panelist at the MIDP program. Both Judges emphasized that the program is still in a pilot phase and Judge Dow indicated that certain aspects of the program, including exemptions from the program “may be tweaked in the fall.”


Positive: Early Consideration of Case Strengths and Weaknesses


However, despite the overall (facially) negative slant of the survey results, a positive effect of the program did rise to the top. In fact, in my unscientific poll of survey responses, the second most popular comment (the first being that the MIDP is too burdensome) was that the program did in fact force parties to quickly get their arms around a case which put them in a better position early on to assess strengths and weaknesses and have frank conversations with clients.


Other than the costs associated with responding to such discovery, the requirement for seeking early disclosure of information did provide a positive platform for discussing pros and cons of the case with the client; although having such frank discussions with clients is standard practice for our firm.


My experience has been positive. It got my clients thinking very early on about the strengths and weaknesses in their claims and resulted in document gathering far in advance of what would normally happen.


Arizona Attorneys Maybe Not as Opposed


My gut reaction to the survey–despite the number of negative responses–is that the MIDP is working. The fact that so many attorneys acknowledged that the program forced them to have frank conversations early in a case about strengths and weaknesses is telling.


If litigants (on either side of a case) are forced to really think about a case early on, rather than awaiting a silver bullet to appear after motion work and discovery, it would not surprise me if more cases are resolved earlier (even if not within the MIDP period). Also, although it may seem that the MIDP causes clients to incur unnecessary costs, the real issue could be that discovery costs are now front loaded (but would eventually be spent in cases subject to a traditional discovery regime).


It could also be the newness of the MIDP that is fostering a negative view of the Chicago program and attorneys will probably get used to it–a fact that might be borne out about the experience in Arizona. For many years prior to the adoption of the MIDP by the Arizona Federal Court, Arizona state courts have had a similar program in place.


Patricia Refo, also a panelist at the MIDP program and an attorney who first practiced in Chicago before moving to Arizona noted that Arizona’s mandatory discovery disclosure requirements were initially foreign to her and unlike the discovery requirements she was used to. In the end she came around and says she is an “incredible convert to this system” and that Illinois practitioners must be patient and keep an open mind.


But in the end, maybe this lawyer’s comment captured it best: “[t]he short term costs and burdens will benefit the entire system in the long term. Some sacrifice for the community is necessary.” Aspirational, definitely. Prophetic, we shall see.


Posted on June 20, 2018 in Court Rules, E-Discovery, Electronically Stored Information (ESI), ESI Production, FRCP, Scope of Discovery

About the Author

Chad Main is an attorney and the founder of Percipient. Prior to founding Percipient, Chad worked as a litigator in Los Angeles and Chicago. He is a member of the Seventh Circuit Electronic Discovery Pilot Program Committee and may be reached at cmain@percipient.co.