In 2017, the Judicial Conference of the United States announced a pilot program for a new discovery protocol known as the Mandatory Initial Discovery Pilot (MIDP). MIDP introduces a new standard for mandatory discovery at the beginning of the case and an accelerated timeline for document production. MIDP aims to cut the cost of discovery in civil litigation to drive just, speedy, and inexpensive case disposition. The Northern District of Illinois has adopted the pilot program for a three-year trial. MIDP applies to civil cases initiated on or after June 1, 2017.
With limited exceptions, the MIDP requires each party to make initial discovery disclosures within 30 days of filing a pleading. Parties must disclose information relevant to claims or defenses asserted by any party, even if they do not intend to use the information or if the information would be unfavorable to the party’s claim. Parties can no longer hope to preclude disclosure of unfavorable information by motion practice and narrow interpretations of the opposing party’s requests. MIDP assumes that early disclosure of information will enable courts to better evaluate the relative merits of each case, which should speed litigation, and reduce legal fees. MIDP aims to avoid the delays caused by discovery-related motions practices used by plaintiffs and defendants alike.
What MIDP requires
Requirements for the initial discovery disclosures are defined in the standing order. They include:
- The identity of persons likely to have relevant information and a fair description of the information;
- Names of persons believed to have given written statements relevant to any party’s claims or defenses;
- A list of the documents, electronically stored information (ESI), tangible things, land, or other property known by each party to exist that is relevant to any party’s claims or defenses;
- 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;
- A computation of damages; and
- The identity and description of relevant insurance or other agreement(s) related to satisfaction of a potential judgment.
Claims of privilege for items in the initial disclosure must be adequately described in a privilege log and produced at the same time unless the parties or the court agree otherwise. Disclosures are required even if the party intends to file a motion to dismiss.
Will MIDP drive permanent change?
Best practices to accelerate discovery to comply with MIDP
Under MIDP, litigants, especially corporations with significant data assets, must focus on proactive litigation readiness to mitigate the risk of missing discovery deadlines. This proactive posture must include ongoing data management practices that identify and categorize data assets and include well-crafted data retention schedules and a program of defensible deletion. Such practices will provide a defensible means of drastically reducing the volume of discoverable information.
Organizations should consider the following as best practices to prepare for the MIDP protocol:
• Work to educate senior leadership on the updated rules, as the lack of executive buy-in can cost organizations precious time in eDiscovery
• Conduct an enterprise-wide inventory of all key data repositories, making sure to identify and memorialize data categories, backup systems, and key custodians for each key system identified
• Move quickly in response to the triggering event – whether plaintiff or defendant, follow documented eDiscovery protocols and work to identify data populations that are likely to contain responsive documents
• Establish retainer agreements for any needed outside specialists, especially external counsel and forensic consultants, as this will allow for rapid deployment without protracted discussions related to contractual terms and pricing
• Conduct a dry run of an eDiscovery response, similar to the “table top” exercises an organization might conduct for cybersecurity, as these exercises can reveal protocol gaps and dangerous assumptions made by the responding team
• Revisit your eDiscovery protocols on a routine basis to make updates related to changes in personnel, infrastructure, key third-party relationships, and other arenas affecting the enterprise.
Parties with litigation in a federal district court participating in MIDP must be ready to meet a significantly accelerated discovery schedule. You now have 30 days to complete a process that used to take weeks, months or years. The program provides for no exceptions based upon the scope or type of litigation. Extensions of time in order to comply with the requirements are severely limited and will hinge upon the discretion of the court, however anecdotal reports suggest that some courts have exercised discretion to allow for reasonable implementation of the new deadlines.
While the public policy benefits of MIDP are tantalizing, it remains to be seen whether they will unfold in practice. There is no certainty that the MIDP will be implemented on a broader scale after the pilot program. However, discovery costs are skyrocketing and courts are increasingly unsympathetic to motions practices that make discovery more expensive and time-consuming. Accordingly, courts will continue to focus on the financial burdens that inefficient discovery place on litigants, the lengthy life of these cases on their dockets, and the delay in administration of justice.
By adopting a proactive stance to litigation readiness now, your organization can lower its costs and be better prepared not only for MIDP in particular but for any future case management initiatives.
Principal, Practice Leader, Forensic Technology Services
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