Today’s guest post is by Reed Smith‘s Lisa Baird, who has written about her recent experience with mandatory initial discovery, as practiced in a “Pilot Project” in place in certain federal district courts. It was interesting – in the “stop and think before you remove to federal court” sense of interesting. As always our guest posters deserve 100% of the credit, and any blame, for their guest posts. The floor is yours, Lisa.

**********

Last summer, my firm’s clients faced two matters filed in rapid succession in the District of Arizona and the Northern District of Illinois. As luck would have it, these are the only two districts participating in the Federal Judicial Center’s Mandatory Initial Discovery Pilot Project (MIDPP), and that meant we were in for a bit of a surprise.

When the pilot project first was announced in April 2017, it received a smattering of attention in the legal press before seemingly fading from view. So you may be asking yourself (as I did), what is the MIDPP? The short answer is that, in the adopting courts, it has worked significant changes to the Federal Rules of Civil Procedure regarding discovery and responsive pleading without following the usual procedures for rules amendments. It also has up-ended the important principle from Ashcroft v. Iqbal, 556 U.S. 662 (2009), that an inadequate complaint “does not unlock the doors of discovery.”

Some important takeaways about the MIDPP are that:

  • Answers must be filed even if a motion to dismiss “or other preliminary motion” has been or will be filed, unless the court defers the responsive pleading deadline “for good cause” and the motion to dismiss is on one of three specified grounds: (1) lack of subject matter or personal jurisdiction; (2) sovereign immunity; or (3) absolute or qualified immunity of a public official.
  • Mandatory initial disclosures—which supersede the initial disclosures otherwise required by Federal Rule of Civil Procedure 26(a)(1)—are due within 30 days of the response to the complaint. A 30-day extension of this deadline is provided for only if the parties certify that they have a good faith belief the case will settle within that additional 30-day period.
  • The MIDPP’s mandatory initial disclosures include:
      • Names and contact information for persons likely to have discoverable information, along with a description of the information they are believed to possess;
      • Written or recorded witness statements, unless privilege or work product is asserted;
      • A list of documents, electronically stored information (ESI), and tangible things that may be relevant and are known to exist, regardless of who possesses them; and
      • A statement of facts relevant to each claim or defense “and the legal theories upon which it is based.”
  • All hard copy documents and ESI falling within the subject matter of the initial disclosures must be produced within 40 days after service of the initial disclosures themselves “unless the court orders otherwise.” In other words, ESI usually will have to be produced about 90 days after service of the complaint (service date + 21 days for responsive pleading + 30 days for mandatory initial disclosures + 40 days to make ESI production).
  • The parties have a continuing duty to supplement their productions within 30 days of the discovery of any new ESI.
  • Parties must disclose “facts relevant to the claims and defenses in the case, whether favorable or unfavorable, and regardless of whether they intend to use the information in presenting their claims or defenses.”

Make no mistake: the discovery and answering obligations imposed by the MIDPP are onerous and there is little flexibility in the model documents as written. In practice, it appears that individual judges sometimes are willing to exercise discretion to continue the “mandatory” deadlines when reason and good judgment dictate doing so, even though the MIDPP contemplates only limited extensions in very narrow circumstances. Given that one of the initial messages about the MIDPP was that its requirements were mandatory and parties could not opt out of the required initial disclosures, however, it probably would be best not to count on routine extensions or exceptions.

The stated purpose behind the MIDPP certainly is laudable enough: reducing cost and delay in litigation. But the net effect in more complex cases—such as product liability actions filed against drug and medical device manufacturers—may be the opposite.

In drug and device product liability litigation, discovery burdens are unequal and fall more heavily on defendants, and there is no reason to think that will change under the MIDPP. Moreover, motions to dismiss are an essential tool for reducing costs and speeding up case resolution in drug and device cases because of unique, dispositive issues such as preemption. Yet because the MIDPP forces the parties into immediate, extensive, mandatory discovery and forces the defendant to answer before any motion to dismiss is heard or decided, sweeping litigation may be well underway before the court decides that the case lacks sufficient merit to proceed.

For example, manufacturers of medical devices with premarket approval rely heavily on Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), and the often-dispositive issue of preemption. But the MIDPP forces these defendants to engage in early, mandatory discovery and to file an answer the complaint, even when the defendant’s preemption-based motion to dismiss is pending and likely dispositive of the lawsuit.

Perhaps the only silver lining for drug and device manufacturers is that MDL-bound cases are among the few types of civil cases excluded from the MIDPP.

For those interested in the details, the District of Arizona rolled out its MIDPP for cases filed on or after May 1, 2017 though General Order 17-08, and the Northern District of Illinois rolled it out for cases filed on or after June 1, 2017 (and assigned to participating judges) through General Order 17-2005 and a Standing Order. There also are users’ manuals for both courts (D. Ariz. and N.D. Ill.) as well as checklists (D. Ariz. and N.D. Ill.). This pilot project is meant to last three years, and so far it is limited to these two districts.

Surely there is room for improvement, however. If not wholesale revisions that acknowledge the Supreme Court’s pronouncement in Iqbal that the “doors of discovery” do not unlock for a deficient complaint, then perhaps an expansion of the lists of motions which defer the duties to answer and provide the mandatory discovery. Or a provision allowing the parties to agree that the deadlines should be delayed in a given case, when a potentially meritorious motion to dismiss is pending. Or explicit recognition that courts may extend the deadlines for answering and providing mandatory discovery in their discretion. Or, if getting on with it is so important, then a companion requirement for expedited motions to dismiss so that they can be briefed and ruled on before any duty to answer and provide mandatory discovery arises.

The Federal Judicial Center suggests providing comments about the MIDPP (or any other civil procedure issue) to the Committee on Rules of Practice & Procedure for the U.S. Courts at its email address. The District of Arizona has an email box for providing comments to that court; it also has an annual conference on March 9, 2018, and one would think the MIDPP would be a central topic of discussion during the civil breakout session. The Northern District of Illinois has an email box for comments on proposed amendments to the local rules, and although that email address is not identified as being for the MIDPP specifically, one would think that it would work for that purpose as well.