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July 20, 2017Download PDF

A Giant Step in the Right Direction: the Northern District of Illinois' Mandatory Initial Discovery Pilot Project

For newly filed cases on or after June 1, 2017, the Northern District of Illinois (generally regarded as a very active District in case management procedures) began participating in a three- year “Mandatory Initial Discovery Pilot Project” (or “MIDP”), which will significantly affect civil litigation, especially in complex class actions. This novel project was endorsed by the Judicial Conference of the United States and is intended to reduce the cost and delay often involved in the initial stages of discovery.

With some specific case exceptions, the project requires parties to respond to a standard set of discovery requests. Unlike in the past where the discovery process would not really begin until service of case-specific requests on each side, the project obligates the parties, right out of the gate, to disclose favorable and unfavorable information to the claims and defenses involved, “regardless of whether they intend to use the information.” Though judicial participation in the program is optional, the vast majority of District Judges and Magistrate Judges in the Northern District are participating.

Anyone with a civil case in this District should become familiar with the Court’s Standing Order, available here. The Standing Order explains the parties’ obligations under the project and the aggressive deadlines applicable thereto. The Standing Order provides that:

- After the filing of the complaint, defendants must file answers, counterclaims, crossclaims and replies within the time set forth in Rule 12(a)(1)-(3) (the shortest time being 21 days after service ). The response date applies even if defendant files a motion to dismiss pursuant to Rule 12(b), and then serves as a trigger for mandatory discovery obligations.
- Once the clock starts ticking, responses to mandatory initial discovery are due “no later than 30 days after the first pleading filed in response to its complaint, counterclaim, crossclaim, or third-party complaint.” The exceptions to this time period are extremely limited. Parties may be relieved of this obligation only if they stipulate that no discovery will be conducted in the case or if the parties certify that they will settle the case within 30 days of the due date for responses.
- Substantively, the mandatory initial discovery information to be provided is comprehensive in scope. It includes: (1) naming persons likely to have discoverable information and a description of the information, (2) naming individuals who have given relevant written or recorded statements, (3) providing a list of the information, including, electronically stored information (“ESI”), relevant to any party’s claims or defenses, (4) providing a statement of facts relevant to claims and defenses and legal theories upon which those claims and defenses are based, (5) a computation of damages, and, (6) describing applicable insurance or indemnification agreements.
- Perhaps most aggressively, the Standing Order provides that ESI must be produced within 40 days after serving initial response, unless otherwise ordered by the Court.

As a member of the Plaintiffs’ bar of the Northern District of Illinois who focuses on complex class action litigation, I am excited about the MIDP. All too often, cases are delayed for many months (and sometimes years!) due to the pendency of motion to dismiss before discovery is even allowed to begin. Since such motions will no longer serve to delay, the MIDP promotes open dialogue on relevant evidence and the parties’ respective views as to the merits of their positions. Because the parties will be able to make assessments on their positions much earlier than before, I am optimistic that the result will be efficiency, early case resolution, and less burden on our courts. Of course, all this remains to be seen and may well require some tweaks (especially to the 40-day ESI deadline in the largest and most complex cases), but surely this must be a giant step in the right direction.