They’re Heeeere! Get Ready for the Specter of Mandatory Initial Discovery in All Cases, Even Consumer Class Actions and Other Complex Cases
The Mandatory Initial Discovery Pilot Project has started in the District of Arizona (for cases filed after May 1, 2017) and the Eastern Division of the Northern District of Illinois (for cases filed on or after June 1, 2017). See General Order 17-08 (D. Az. Apr. 14, 2017); General Order 17-005 (N.D. Ill. Apr. 27, 2017). The bottom line is that the pilot project will require defendants in these courts to quickly marshal the relevant facts and in short order produce a level of substantive disclosures, documents, and ESI that could pose a considerable challenge in consumer class actions and other complex cases. While these requirements set an ambitious goal for responsive pleadings and early disclosure of a broad swathe of information, there are proactive measures companies can take to be better prepared to respond to consumer class actions in the tight timeframe set by the pilot project.
Scope of the Pilot Project and Its Requirements
The two courts’ respective Standing Orders outline the details of the project, which will run for three years and applies to nearly all civil cases. See General Order 17-08 (D. Az.) and Standing Order Regarding Mandatory Initial Discovery Pilot Project (N.D. Ill.). The only civil cases exempted from the project are (1) actions under the Private Securities Litigation Reform Act, (2) patent cases governed by local rule, (3) cases transferred for consolidated administration by the Judicial Panel on Multidistrict Litigation, and (4) the assortment of cases listed in Rule 26(a)(1)(B) (i.e., review on administrative record, in rem forfeiture actions arising from federal statute, any proceeding challenging a criminal conviction or sentence, cases brought by someone in custody without the aid of an attorney, actions by the U.S. to recover benefit payments, actions by the U.S. to collect on government-guaranteed student loans, proceedings ancillary to cases in other courts, and actions to enforce arbitration awards). Parties are not allowed to opt out.