Author: Helen GeibeDiscovery LawIndustry Insights

Discovery in 100 Days? It’s not only possible, it’s now required

Discovery in federal cases just got a lot faster in Illinois and Arizona. The Northern District of Illinois and District of Arizona are three months into a three year Mandatory Initial Discovery (MID) pilot project that will affect nearly all new civil cases filed in those districts. The MID pilot project makes mandatory and expands the scope of existing requirements under Federal Rules of Civil Procedure 26(a)(1) and 26(f), creates a procedure for early resolution of discovery disputes and imposes extremely aggressive document production deadlines. In short, you now have only 100 days from filing to production.

The requirements of the MID pilot project are set out in a N.D. Ill. Standing Order. Parties will need thorough preparation and good eDiscovery strategy to comply with the letter and spirit of the project. Their potential reward lies in the MID project’s stated purpose to make cases more “just, speedy and inexpensive” by taking a new approach to early discovery.

Full participation required

The MID project’s philosophy of mandatory participation can be summed up as no exceptions, no extensions. All new cases are automatically enrolled with a few limited exceptions like consolidated multi-district litigation. The official MID pilot project checklist gives the full list of exempted matters. Parties can remove their case from the project only by filing a joint written stipulation that no discovery will be conducted. All project requirements are mandatory; opting out is not allowed, either by agreement or court order.

Similarly, extensions of time are permitted in only three circumstances. At the outset of the process, a one-time 30 day deferral will be granted if the parties jointly certify they have a good faith belief that the case will settle within 30 days of filing the answer. Second, program deadlines are tolled if the defendant raises a jurisdiction or immunity defense. Finally, and in contrast to all other project requirements, the court retains discretion to extend production deadlines.

Initial discovery responses – 30 days after responsive pleading

The first prong of the pilot project is “initial discovery responses,” so-called to distinguish it from Rule 26(a)(1) initial disclosures (which are superseded by MID). In fact, it is more than a semantic difference. The scope of initial discovery is significantly broader than Rule 26(a)(1) disclosures in several important respects:

  • Information must be disclosed that is relevant to any party’s claims and defenses, not just to the responding party’s
  • The duty to disclose is not limited to what the party intends to rely on, or in other words, it covers harmful as well as helpful facts and documents
  • All known information must be disclosed, not just information in the party’s possession, custody or control
  • The topic list incorporates and builds on the Rule 26(a)(1) required disclosures, most notably by requiring “a statement of the facts relevant to each claim or defense raised by the responding party, and the legal theories upon which each is based.”

As the official MID pilot project documentation makes clear, Mandatory Initial Discovery is purposefully designed to eliminate the need for most if not all party-directed discovery (and a party may not serve any discovery until after initial discovery is completed). To make party-initiated discovery unnecessary, parties must voluntarily disclose everything they would reasonably expect the opposing party will, might or should ask about. Of course, parties must disclose everything they intend to rely on as well.

The parties must exchange their initial discovery responses 30 days after a responsive pleading is filed. If there is more than one responsive pleading (e.g., if there is a counterclaim), then there will be multiple rounds of initial discovery. Parties must file a notice of service, but ordinarily should not file the discovery responses (there is an exception for disputed responses, treated below).

The discovery responses must be signed under oath by the party. They must also include a certification by counsel under Rule 26(g) or applicable local rule that the response is complete and correct, not made for an improper purpose and consistent with the law and facts. The opposing party may request more detail, and may follow up with a Rule 34 request for production of all disclosed items.

Parties must supplement their responses in a timely manner and no later than 30 days after discovering the new information. A practice tip is to build a running master document since it is burdensome on everyone to collate a disclosure made over multiple documents. The court is expected to set a final supplementation deadline in the Rule 16 order; if one is not set, then the deadline is 60 days before the final pre-trial conference or 90 days before trial.

It is not necessary to serve a supplemental response if the opposing party has already been made aware of the information; for example, if the new information came to light in a deposition or affidavit. The practice tip there is to keep good notes of any such alternative sources in the event of a challenge to the sufficiency of the written responses.

The underlying purpose of initial discovery responses is to push the parties to talk seriously about settlement by forcing them to lay their cards on the table, in the hope that more cases will settle early on before substantial discovery costs are incurred. At a minimum, parties who fully comply with the requirements can expect to reap cost savings by narrowing the issues in dispute.

Meet and confer – now mandatory

The second prong of the pilot project essentially makes the Rule 26(f) meet and confer mandatory. Unfortunately, in too many cases counsel either opt out of Rule 26(f) entirely or fail to adequately address electronic discovery (meaning, effectively, document discovery). The MID project reiterates and emphasizes the importance of the conference generally and of discussing electronic discovery specifically. In particular, the required topic list includes custodians, search terms, the use of technology assisted review and the form of production.

The Standing Order also expressly requires the parties to discuss the initial discovery responses. The parties must promptly follow up on the conference by filing a Rule 26(f) report describing their discussions. The report should provide details of agreements, such as agreed limits on discovery scope, and all unresolved objections. Copies of disputed responses and other pertinent supporting material should be attached to the report.

Litigators can leverage the mandatory Rule 26(f) conference to cut the overall cost of eDiscovery in the case in several ways. First, limiting the scope of discovery reduces ESI volume, the main cost driver throughout the eDiscovery lifecycle. Second, a comprehensive discussion of eDiscovery issues heads off costly and unnecessary discovery disputes and do-overs. Third, using predictive coding and other advanced analytics during review substantially reduces attorney review time, typically the largest part of the eDiscovery budget.

Accordingly, litigators should seek to a) get buy-in from opposing counsel on the most efficient and cost-effective discovery strategies available, including technology assisted review; b) negotiate acceptable compromises on collection scope and methodology, among other topics; and c) before incurring any related discovery costs, identify issues that need to be addressed by the court. In fact, the final point is actually required by the project’s dispute resolution procedure.

Discovery dispute resolution – earlier and faster

Any dispute arising out of the initial discovery responses or Rule 26(f) conference must be presented in a single joint motion stating the parties’ positions. The motion should attach relevant excerpts from the discovery responses. It must also include a Rule 26(g) certification of counsel.

The MID pilot project documentation includes a User’s Manual. While primarily focused on the parties’ duties, the Manual also sets out the responsibilities of the court. Pertinently, judges should “monitor the parties’ mandatory initial discovery responses” and “make themselves available for prompt resolution of disputes.” The Comments go on to note that the success of the pilot project “depends significantly on early and active case management.”

Where possible the court should resolve disputes at the case management conference, or at the least, on an expedited basis. To further speed rulings, the Manual encourages phone conferences without briefing or with limited written argument.

The Manual also makes clear that parties may be sanctioned under Rule 37 for deficient discovery responses. The Comments emphasize that “the effectiveness of the MIDP will depend significantly on the willingness of judges to impose real consequences.” The usual discovery remedies are available: additional or re-opening of discovery; cost-shifting; exclusion of evidence; and monetary or other sanctions.

Production deadline – 40 days after initial discovery responses

The fourth prong of the MID pilot project is an aggressive document production deadline. Production must be completed 40 days after service of the initial discovery responses. Taking all deadlines together, this means production must be completed within 100 days of the case filing. Supplemental productions must be made of newly discovered documents.

Production should be made in the format requested by the opposing party. If no form is specified, the producing party may use any reasonable form that gives the requesting party an equal ability to access and search the ESI. There is no obligation to produce in more than one form absent a showing of good cause. From a practical standpoint, this means that parties that fail to raise production format during the meet and confer process will have to live with what they get unless it is glaringly inadequate.

Unlike the other requirements, the production deadline may be extended by the court. In addition, the timetable for service of privilege logs may be extended by either agreement or court order. The parties may also negotiate the form of the privilege log, such as by using category logs.

It seems safe to predict that requests for extension will be common, since meeting the production deadline will be quite difficult in any case with even moderate ESI volume. It is not hard to imagine scenarios where meeting the production deadline will be literally impossible; high data volume, restoration of archived data and cross-border data transfer are three situations that come immediately to mind.

However, at this early date in the pilot project there is no way of knowing how receptive judges will be to such requests, even if well-founded. Parties must proceed on the assumption that they will be required to meet the 40 day deadline. At a minimum, they should do everything possible to substantially complete their production and be able to show a good faith effort to fully comply with the requirements.

Parties will be well advised to attempt to limit the scope of production as far as possible by raising proportionality concerns and other objections in their initial discovery responses and during the meet and confer. If necessary, they should seek relief from the court with the aim of reducing production data volume. Even if proportionality arguments are not successful in limiting scope of production, they may still be successful in winning extensions or cost-sharing. Similarly, parties can use the Rule 26(f) report to advocate for the use of predictive coding, advanced analytics, keyword search limits and other review strategies with proven value in expediting production.

Compared to the other aspects of the MID pilot project, little attention is paid to the production requirement in the official documentation. One of the primary goals of the project is to shorten the overall case timeline. Although not specifically stated, the accelerated production deadline is presumably intended to effectuate that goal. However, short production deadlines almost always drive costs up. This works against the cost-cutting benefits of the initial discovery responses, mandatory Rule 26(f) conference and expedited dispute resolution procedure.

Strategies for success

The pilot project undeniably poses many challenges. Parties and their counsel will have to work hard and smart in the first few months of the case if they are to meet the project’s requirements and reap its cost-saving benefits. These are six strategies to help you succeed:

  • Embrace early case assessment (ECA) – ECA is a process to learn the facts and legal issues, evaluate the strengths and weaknesses of your case and develop an overall litigation strategy. It will prove invaluable in preparing the initial discovery responses and having an effective discovery conference. My article “Early Case Assessment in 12 Steps” provides tips for successful ECA.
  • Use eDiscovery technology – High data volume is the new normal. The MID project imposes aggressive deadlines for evaluating and producing ESI. Using technology assisted review and other eDiscovery tools for culling, analyzing and reviewing ESI is essential.
  • Keep your service provider on speed dial – Plan ahead with your service provider so you’re both ready to pull the trigger as soon as a case is filed. There’s no time to lose.
  • Take advantage of privilege protections – Short production deadlines increase the odds of an inadvertent disclosure of privileged documents. Take advantage of Rule 502(d) orders, clawback agreements and other means to protect against inadvertent waiver.
  • Start before you file – Plaintiffs have a built-in advantage of advance warning. Make good use of it by starting work on the initial discovery responses and overall eDiscovery project before filing.
  • Communicate and cooperate – The Users’ Manual provides the final strategy: “Communication with the Court and cooperation among counsel are essential and expected.”

The pilot project is of paramount importance to lawyers who practice in the participating districts, but its significance is much broader. Data gathering and assessment are built into the MID project design. We all have a valuable opportunity to learn from its successes, failures and unintended consequences.

 

 


Helen Geib is General Counsel and Practice Support Consultant for QDiscovery. Prior to joining QDiscovery, Helen practiced law in the intellectual property litigation department of Barnes and Thornburg’s Indianapolis office where her responsibilities included managing large scale discovery and motion practice. She brings that experience and perspective to her work as an eDiscovery consultant. She also provides trial consulting services in civil and criminal cases. Helen has published articles on topics in eDiscovery and trial technology. She is a member of the bar of the State of Indiana and the US District Court for the Southern District of Indiana and a registered patent attorney.

 

This post is for general informational and educational purposes only. It is not intended as legal advice or to substitute for legal counsel, and does not create an attorney-client privilege.

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