A manufacturing company was recently served with a complaint filed in the United States District Court for the Northern District of Illinois. The company litigated a similar case in 2017 in the Northern District under the court's Mandatory Initial Discovery Pilot Program ("MIDP"), and the company's general counsel has asked whether the same rules will apply to the recently-filed case.
The Mandatory Initial Discovery Pilot Program
In mid-2017, the District of Arizona and the Northern District of Illinois began participating in the Federal Judicial Center's MIDP. The MIDP radically changed the scope of parties' initial disclosures, and the timing of discovery more generally, and applied (with limited exceptions) to all civil cases.
Three crucial changes brought about by the MIDP at the time were:
1. A motion to dismiss generally would no longer delay the time to answer the complaint;
2. With limited exceptions, 30 days after a responsive pleading is filed, the parties were to serve an expanded set of initial disclosures; and
3. Absent a court order, ESI was generally to be produced within 40 days of serving a party's initial disclosures, and parties were to meet and confer regarding the disclosure and production of ESI, including with respect to each party's preservation obligations, custodians, search terms, the use of technology-assisted review and the form in which ESI will be produced.
Updates to the MIDP in the Northern District of Illinois
As a pilot project, the Northern District of Illinois has evaluated both the litigants' and the court's reactions to the MIDP for the past year and a half. Effective December 1, 2018, the Northern District of Illinois amended its implementation of the MIDP on the basis of comments from the legal community. The Northern District's amended Standing Order now provides that filing a motion to dismiss does delay the time to answer the complaint, restoring the traditional time periods set forth in Federal Rule of Civil Procedure 12(a).
Under the amended Standing Order, filing a motion to dismiss will also delay the time to produce the MIDP's expanded set of initial disclosures.
The court does, of course, retain discretion to depart from the amendment and order that answers be filed or that initial disclosures be exchanged earlier.
The revision to the MIDP is a welcome change for defense counsel and their clients. Defendants facing even frivolous claims that could easily be dismissed were nevertheless forced to incur sometimes extensive costs to provide mandatory initial disclosures and produce documents. Now, while a motion to dismiss is pending, discovery will generally not commence, and litigation costs can be reduced significantly as meritless cases are weeded out.
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