September 20, 2017 Practice Points

Coming Soon to A City Near You: The Mandatory Initial Discovery Project

Although this is just a pilot, awareness of this program is essential for potential plaintiffs and defendants.

By Ivy Brewer – September 20, 2017

Discovery is expensive and often lengthy. Methods to reduce discovery costs are of interest to all parties and soon you may not have much of a choice. Introducing, “The Mandatory Initial Discovery Project” (MIDP), which took effect in the district courts of Arizona and the Northern District of Illinois over summer 2017. These three-year pilots are the first two approved by the Judicial Conference of the United States.

While there has not been an official Federal Rules of Civil Procedure change yet, the MIDP does affect the rules, particularly Rule 26. With an emphasis on better enforcing Rule 1—“just, speedy, and inexpensive determination of every action and proceeding”—the MIDP now requires responses to mandatory initial discovery in almost all civil cases. Implemented with a standing order, initial discovery responses require “favorable and unfavorable information that is relevant to the claims and defenses of the case” to be released. This is a drastic change, and could be likened to the prosecution burden of production for criminal cases. The hope is that early case assessment will allow parties to evaluate the strengths and weaknesses of their positions, and come to early resolution with minimal legal fees. This creates a further inducement to settle civil cases even though 97 percent of civil cases in the United States are already settled or dismissed without a trial.

An additional highlight is that unless the parties stipulate that there will be no discovery conducted in the case, parties cannot opt out of the requirements to provide mandatory responses, and deferral for discovery can only occur once. So, even if a party files a motion to dismiss, it will likely still be responsible for producing information that addressees all claims or defenses. Now, all initial discovery responses must be submitted within 30 days. For the party seeking relief, it must serve its responses within 30 days and the party filing a responsive pleading must serve its response within 30 days. Afterwards, if electronically stored information (ESI) is requested, it must be produced within 40 days after a party serves its initial response. Failure to do so can result in severe sanctions.

Although the effects of the MIDP project are yet to be determined, there are certain to be positive and negative outcomes for this project.

One potential negative outcome is the effect of this pilot on litigation budgets. Will this project actually make litigation less expensive? While asking parties to produce all relevant information within 40 days does shorten the period of initial discovery, it does not reduce the scope of information required to be produced. Thus, the expenses of manpower, hours, and resources that will be needed to produce the relevant documents and information within that compressed time frame will not shrink and may even grow. Even if the scale of the expenses remains the same, they will happen all at once, instead of over an extended time, which will impact how companies budget and pay for them.

However, there may be ways to mitigate costs for this pilot. Perhaps companies may be better off completing their own initial discovery instead of working with an outside vendor. For example, if companies paid for discovery training and certification for some of their employees, costs could be lessened by at least keeping the initial discovery process in-house.

Additionally, a plausible positive outcome of using in-house counsel and legal staff for initial discovery is that privilege-implication risks are lessened. Company legal staff are much more likely to be aware of their own company’s storage and archival systems, document-retention polices, records management, and what information should be considered relevant, non-relevant, or privileged. Making use of this process in-house will allow counsel to quickly analyze the strengths and weaknesses of their cases and whether litigation should continue to be pursued.

Overall, it will be interesting to see the impact MIDP has on litigation. Although this is just a pilot, awareness of this program is essential for potential plaintiffs and defendants.

Ivy Brewer is a Legal Intern at PAE and a 2L at Howard University School of Law.

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