Mandatory Initial Discovery Pilot Project Underway in AZ and IL Federal Courts

A three-year pilot project studying “whether requiring parties in civil cases to respond to a series of standard discovery requests before undertaking other discovery will reduce the cost and delay of civil litigation” is now underway in the District of Arizona and the Northern District of Illinois.  All civil cases in these jurisdictions, except those exempted by the program’s Standing Order, will be subject to the provisions of the program.

As summarized by the N.D. Illinois Users’ Manual (a nearly identifcal summary appears in teh D. Arizona Users’ Manual):

The MDIP Can be described in a nutshell as follows:

(a) The MIDP requires responses to mandatory initial discovery in all civil cases other than those exempted by the Standing Order that implements the MIDP.

(b) The mandatory discovery is framed as court-ordered discovery that must be responded to before the commencement of broader discovery under Rules 26, 30, 31, 33, 34, 35, 36.

(c) The mandatory initial discovery replaces the initial disclosures otherwise required by Rule 26(a)(1).

(d) The parties may not opt out of the requirement to provide the mandatory discovery responses.

(e) The requirement to provide mandatory initial discovery responses includes both favorable and unfavorable information that is relevant to the claims and defenses in the case. This includes claims and defenses asserted by all parties to the litigation, and a responding party must provide relevant information regardless of whether it intends to use the information in presenting its claims or defenses.

(f) Parties must file with the Court a Notice of Service of their initial responses and later supplements, but not the responses or supplements themselves. If there is an unresolved dispute regarding the responses, parties must provide the Court with the responses or supplements at issue to enable the Court to resolve the dispute;

(g) The Court will discuss the mandatory initial discovery with the parties during the case management conference under Rule 16(b)(2), and resolve any disputes regarding compliance with the required discovery; and

(h) MIDP courts will vigorously enforce the requirement to provide mandatory initial discovery responses through the imposition of sanctions if appropriate under the Federal Rules of Civil Procedure.

Notably, the Standing Order includes a provision that directly addresses the production of ESI and mandates, among other things, that the parties confer and attempt to agree “on matters relating to its disclosure and production” including:

i. requirements and limits on the preservation, disclosure, and production of ESI;

ii. appropriate ESI searches, including custodians and search terms, or other use of technology-assisted review; and

iii. the form in which the ESI will be produced.

Explanatory materials are available from both the Federal Judicial Center and the participating jurisdictions, and include the Standing Order, checklists, users’ manuals, and two video presentations that provide additional information.

A further explanation of the program and links to all written and presentation materials are available here.