The Mandatory Initial Discovery Pilot Project: A Good Way to Ease Discovery Overload?
Since at least the year 2000, eDiscovery practitioners – myself included – have been looking for ways not only to tame the ever increasing deluge of electronically stored information (or “ESI”) that presents itself for possible discovery in litigation, investigation, and subpoena response matters, but also to help our clients and colleagues locate quickly and efficiently the “needles in the haystack” that really matter.
Over the years, technology has helped with both goals. Online review platforms replaced armies of associates reviewing bankers boxes full of hard copy documents; early technology assisted review (or “TAR”) systems helped bring efficiency and consistency to review by (for example) helping “thread” and bring together all relevant portions of email exchanges; and more recent TAR advances allow the attorneys most knowledgeable about a matter to help “train” the system so that it can attempt to serve up the most potentially relevant documents first.
But as helpful as the increases in technology have been, they have not proven to be the panacea to discovery overload for which many hoped. And that’s why the Advisory Committee on the Federal Rules of Civil Procedure, in consultation with the Judicial Conference of the United States, has developed the Mandatory Initial Discovery Pilot Project (or “MIDPP”). Two forward-thinking jurisdictions – the District of Arizona and the Northern District of Illinois – are in the vanguard as the initial participants. And as usual, the Federal Judicial Center (or “FJC”) has compiled an excellent overview of the MIDPP, complete with educational materials.
As described by the FJC, the MIDPP will help determine “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.”
The FJC goes on to make clear that the courts participating in the MIDPP “have adopted a Standing Order explaining the parties’ obligations under the pilot project and setting forth the initial discovery requests to which the parties must respond.”
Some of the key requirements under the Standing Order, as summarized by the FJC, include:
- At the Rule 26(f) conference, parties must discuss the mandatory initial discovery listed in the Standing Order and describe their discussions (including limitations invoked and disputes) in their Rule 26(f) report.
- Parties must provide the requested information as to facts that are relevant to the parties’ claims and defenses, whether favorable or unfavorable, and regardless of whether they intend to use the information in presenting their claims and defenses.
- Parties must file answers, counterclaims, cross-claims, and replies within the time limits set in Rule 12(a)(1)-(3), even if they have filed or intend to file a motion to dismiss or other preliminary motion.
- Parties must serve their initial discovery responses by the deadlines described in the Standing Order unless modified by the court.
- Parties must address certain issues relating to ESI and produce ESI by the deadline set in the Standing Order.
- Pilot judges should hold initial case-management conferences within the time set in Rule 16(b)(2) and discuss the parties’ compliance with the mandatory discovery obligations.
Judges and practitioners alike will be watching with interest how the MIDPP impacts discovery data volumes and efficiency in participating jurisdictions. And although the history of eDiscovery has taught us to be cautious in declaring any one technology – or, in this case, any one Rule amendment – as the silver bullet that will once and for all bring down the expense and complexity of discovery, the MIDPP is a candidate for at least doing no harm, and hopefully a lot of good.
Contact Chris to learn more about the Mandatory Initial Discovery Pilot Project and the ways Level 2 Legal Solutions is helping our clients tame the ever increasing data deluge and the burdens of eDiscovery.