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Wednesday, June 28, 2017

N.D. Ill. Pilot Program on Discovery Changes

The following was posted by past guest Robin Effron (Brooklyn) at the Civ Pro & Fed Courts Blog, on a pilot program in the Northern District of Illinois requiring parties to engage in mandatory discovery requests and production (beyond FRCP 26(a) disclosure). Here is the Standing Order and here is a "Users' Manual". Thoughts, comments, or predictions?

The Northern District of Illinois launched a mandatory pilot program last month that requires parties to engage in a series of mandatory discovery requests and disclosures.  The FJC reports that this will help them study "whether requiring parties in civil cases to respond to a series of standard discovery requests before undertaking other discovery reduces the cost and delay of civil litigation."

This pilot program could also have an effect on pleading and Twombly-style 12(b)(6) fact motions:  Under the program, parties are required to file answers simultaneously with 12(b) motions unless they show good cause that the court is considering a jurisdictional dismissal.  

A few interesting highlights from the discovery order:

Paragraph 1: "State the names and, if known, the addresses and telephone numbers of all persons who you believe are likely to have discoverable information relevant to any party’s claims or defenses, and provide a fair description of the nature of the information each such person is believed to possess."  Compare this to Federal Rule 26(a)(1)(A)(i): "the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment."

Paragraph 2: "State the names and, if known, the addresses and telephone numbers of all persons who you believe have given written or recorded statements relevant to any party’s claims or defenses. Unless you assert a privilege or work product protection against disclosure under applicable law, attach a copy of each such statement if it is in your possession, custody, or control. If not in your possession, custody, or control, state the name and, if known, the address and telephone number of each person who you believe has custody of a copy."

Paragraph 4: "For each of your claims or defenses, state the facts relevant to it and the legal theories upon which it is based."

This program will be interesting to watch, and I'm looking forward to seeing what the FJC (and perhaps other scholars) produce.  More info here.

Posted by Howard Wasserman on June 28, 2017 at 08:10 PM in Civil Procedure | Permalink

Comments

Assuming that this counts as a Local Rule for N.D. Ill., how does this satisfy FRCP 83's requirement that local rules "be consistent with" rules enacted through the Rules Enabling Act? I thinking specifically of the change to the filing deadlines for answers.

Posted by: BRS | Jun 30, 2017 4:32:21 PM

I don't read it as altering those deadlines. Responses must be filed within the times listed in 12(a)(1)-(3). The only difference is that certain motions do not suspend the time for filing a responsive pleading, which must be filed simultaneously. But 12(a)(4) already anticipates that the court can set a different time for filing a responsive pleading in the event of a pre-answer motion.

Posted by: Howard Wasserman | Jul 2, 2017 1:04:26 PM

I don't read it as altering those deadlines. Responses must be filed within the times listed in 12(a)(1)-(3). The only difference is that certain motions do not suspend the time for filing a responsive pleading, which must be filed simultaneously. But 12(a)(4) already anticipates that the court can set a different time for filing a responsive pleading in the event of a pre-answer motion.

Posted by: Howard Wasserman | Jul 2, 2017 1:04:31 PM

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