CBA Record November 2017

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FOLLOWING SERVICE OF THE COMPLAINT,
defendants must file an answer (even if they are also moving
dismiss for failure to state a claim). Based on the complaint
and answer, the parties must identify and describe witnesses and
documents (whether favorable or unfavorable), their factual and
legal theories, and other information. The parties must also pro-
duce the actual documents and electronically stored information
(“ESI”). Parties must endeavor to resolve disputes regarding the
initial discovery at an early stage and bring unresolved issues to
the Court’s attention before or during the initial case management
conference. Proponents anticipate that this innovative program
will encourage candid self-assessment, early settlements and, at
minimum, a more efficient discovery and litigation process.
The Pilot’s Background
Acting on a recommendation by the Advisory Committee on the
Federal Rules of Civil Procedure, the Federal Judicial Conference
(“FJC”) adopted the Pilot to explore whether expedited discov-
ery will foster early settlements and more efficient litigation. The
FJC’s Chairperson, Supreme Court Chief Justice Roberts, is a
major proponent of the Pilot. It is a natural extension of the 2015
Amendments to the Federal Rules of Civil Procedure (“FRCP”),
including FRCP 1, which mandates that the courts and parties
alike work to “secure the just, speedy, and inexpensive determina-
tion of every action.”
Proponents recognized the need to test the Pilot in a large
metropolitan court with a diverse and expansive caseload. The
Northern District of Illinois agreed to serve as a test court for a
three-year period. “Our district has always been on the cutting
edge of litigation,” Judge Ruben Castillo stated during the MIDP
workshop held on May 22, 2017. District Judges St. Eve and
Dow and Presiding Magistrate Judge Valdez are leading the Pilot’s
implementation.
The Standing Order And Manual
The Pilot’s core provisions are set forth in the Standing Order
Regarding Mandatory Initial Discovery Pilot Project (“Standing
Order”), available on the District Court’s website, at https://www.
ilnd.uscourts.gov/_assets/_documents/MIDP%20Standing%20
Order.pdf.
The Pilot’s discovery obligations replace the disclosure obliga-
tions set forth in FRCP 26(a)(1). Some overlap exists in the subject
matter of disclosures, but there are significant differences in the
timing, nature and scope of production. For example, the Pilot
requires disclosure of favorable and unfavorable material even if
the party does not intend to rely upon it (versus just favorable
material on which the party intends to rely) and production of
actual documents and ESI (versus just descriptions). These features
are designed to encourage parties to candidly assess the strengths
and weaknesses of their claims and defenses at a very early stage.
According to the Mandatory Initial Discovery Users’ Manual,
available at
Users%20Manual%20FINAL.pdf, the “MIDP courts will vigor-
ously enforce the requirement to provide mandatory initial discov-
ery responses through the imposition of sanctions if appropriate.”
Indeed, it is robust participation in virtually all cases, large and
small, that will provide the information necessary to evaluate the
Pilot’s effectiveness.
The Pilot’s Expansive Reach
The Pilot applies to all civil cases filed during the three year period
commencing June 1, 2017. An extremely limited subset of cases
are excluded: administrative reviews, habeas corpus petitions, pro
se prisoner actions, administrative subpoena challenges, federal
government cases to recoup benefits or collect on student loans,
actions to enforce arbitration awards, securities suits subject to the
Private Securities Litigation Reform Act, certain patent cases, and
cases transferred to the District by the Judicial Panel on Multi-
district Litigation. Every District Judge in the Northern District
of Illinois has opted into the Pilot, with the exceptions of Judges
Der-Yeghiayan, Gettleman and Kennelly. Senior District Judge
Bucklo and all Magistrate Judges are also participating.
Unlike other early discovery mechanisms, parties may not opt
out of the Pilot’s disclosure obligations.
Parties Must Immediately Begin Gathering Documents and
Information
Because the subject matter of mandatory discovery is broad and
includes all material “reasonably available” to the party, counsel
should immediately begin working with their clients to identify
pertinent material. The comprehensive default discovery topics
are summarized below:
1. State the names, addresses and telephone numbers of “all
persons” likely to have discoverable information “relevant to any
NorthernDistrict of Illinois practitioners are operating under new rules
requiring parties to producematerial—whether favorable or unfavor-
able—at an early stage, even before motions to dismiss are decided.
The rules, embedded in the Mandatory Initial Discovery Pilot Project
(the “Pilot” or “MIDP”), went into effect on June 1, 2017 and will run
for a three-year period. Almost all civil cases filed in the District will be
affected by the Pilot.
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