CBA Record November 2017

Within 30 Days of the Answer, Parties Must Serve their Initial Discovery Responses Within 30 days of the answer, parties must serve their initial responses to the manda- tory discovery, i.e., description of witnesses, documents, ESI, legal claims and defenses, and insurance policies. Parties must also produce or make available hardcopy docu- ments. Standing Order ¶ A(4), ¶¶ B(3), C(1). ESI production occurs later. Parties may object to the mandatory initial discovery subjects to the same extent as with respect to party-initiated discovery, including objections claiming that the mandatory discovery “would involve dis- proportionate expense or burden, consider- ing the needs of the case.” Standing Order ¶ A(2). Boilerplate objections, however, are not permitted; rather, the party must “explain with particularity the nature of the objection and its legal basis and provide a fair description of the information being withheld.” Withholding based on the attorney client privilege or work product protections requires a privilege log, unless the parties jointly agree that privilege logs are not required. Standing Order ¶ A(2). The parties must certify that the initial response is “complete and correct.” This is signed by the party “under oath,” and by the attorney pursuant to Rule 23(g). Standing Order ¶ A(1)(b). The parties do not file initial discov- ery responses with the Court, but rather file a notice of service with the Court. The Northern District of Illinois website contains information regarding how to electronically file the notice. Two limited exceptions to the initial response deadline exist. First, initial responses are unnecessary if the parties jointly stipulate that there will be no dis- covery whatsoever in the case. Second, in an effort to promote early resolution, initial responses may be deferred “one time” for 30 days if the parties jointly certify that they have a “good faith belief ” that the matter will settle within 30 days of the due date for their initial response. Standing Order ¶ A(4). ESI Is Due Within 40 Days of Initial Response The parties must confer promptly regard- ing ESI and the protocol for disclosure,

party’s claims or defenses” and a “descrip- tion of the nature of the information each such person is believed to possess.” 2. State the names, addresses and telephone numbers of “all persons” who have given written or recorded statements “relevant to any party’s claims or defenses” and “attach a copy of each such statement” to the response. 3. “List documents [and] electronically stored information (‘ESI’)” that you believe “may be relevant to any party’s claims or defenses” whether or not the items are in your possession, custody or control. If too voluminous to list separately, “you may group similar documents or ESI into categories and describe the categories with particularity.” Identify the “custodians” of the documents or ESI. 4. For each of your claims or defenses, “state the facts relevant to it and the legal theories upon which it rests.” 5. Provide a computation of “each category of damages claimed by you” and “a descrip- tion of the documents or other evidentiary material” on which the claim of damages is based. 6. Identify and describe “any insurance or other agreement” that may satisfy all or

part of a possible judgment in the action or to indemnify or reimburse a party for payments made to satisfy the judgment. All “reasonably available” pertinent material must be disclosed; no party will be excused from full disclosure simply because it “has not fully investigated the case.” Standing Order ¶ A(1)(b). Critically, and unlike other mandatory disclosure obligations such as those con- tained in FRCP 26, parties must provide information “whether favorable or unfavor- able, and regardless of whether they intend to use the information in presenting their claims or defenses.” Standing Order ¶ A(2). Mandatory Answer Even When Motions to Dismiss Are Filed The Pilot requires defendants to file their answers in the time set forth in FRCP 12. Standing Order ¶ (A)(3). Defendants must do so even if they intend to move to dismiss for failure to state a claim. Only motions challenging jurisdiction or claiming immu- nity may defer the answer if “good cause” exists. The mandatory answer is designed to inform the parties’ understanding of the scope of issues in dispute for purposes of completing their initial disclosures.

30 NOVEMBER 2017