CBA Record November 2017

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.

F OLLOWING 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 https://www.ilnd.uscourts.gov/_assets/_documents/ 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

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