All Good Things Must Come to an End

Fennemore Craig Client Alert

All Good Things Must Come to an End

On May 1, 2017, the District of Arizona began participating in a three-year pilot project, known as the “Mandatory Initial Discovery Pilot Project” or “MIDP.” The goal of the MIDP is to collect data and study whether requiring parties in civil cases to respond to a series of standard discovery requests before undertaking other discovery would reduce the cost and delay of civil litigation. This pilot project was originally proposed by the Advisory Committee on the Federal Rules of Civil Procedure and approved by the Judicial Conference of the United States. The project was implemented in the District of Arizona and the Northern District of Illinois.

With certain limited exceptions, all civil cases filed in the District of Arizona on or after May 1, 2017 have been subject to the MIDP, which established a number of variations to the Federal Rules of Civil Procedure otherwise applicable to discovery. Perhaps most notably, the MIDP required parties to respond to a list of Court-issued discovery requests without awaiting discovery from opposing parties. These discovery requests, among other things, obligated parties to:

1. identify all persons likely to have discoverable information;
2. identify, produce, or make available for inspection all documents that may be relevant to any party’s claims or defenses;
3. state all facts and legal theories upon which a party’s claims or defenses are based;
4. provide a computation of each category of damages claimed and a description of the documents or other evidence upon which it is based; and
5. identify and describe applicable insurance agreements.
    

The MIDP also required parties to, early on in cases, confer and attempt to reach agreements regarding the identification and production of Electronically Stored Information (ESI) and report to the Court their discussions about the mandatory initial discovery responses and existing disagreements requiring resolution by the Court.

As planned, the pilot program will terminate on May 1, 2020. On April 16, 2020, the District of Arizona issued General Order 20-21 notifying litigants of the termination.

General Order 20-21 provides the following:

• Civil cases filed after May 1, 2020 will not be part of the MIDP and will not be subject to its disclosure requirements.
• Cases filed after May 1, 2020 will instead be litigated under the Federal Rules of Civil Procedure, subject to case management orders entered by individual judges.
• Individual judges may elect, in their own case management practices, to impose some or all of the MIDP requirements in individual cases that are filed on or after May 1, 2020. Thus, it is important to carefully review all case management orders in cases filed after May 1, 2020 to evaluate whether some or all of the MIDP requirements will apply to your case.
• Covered civil cases that were filed before May 1, 2020 will remain part of the MIDP and will be litigated to conclusion under the requirements of the project.
   

The Federal Judicial Center is expected to complete a study of the cases litigated under MIDP in the District of Arizona and the Northern District of Illinois and may contact judges and counsel involved in those cases for their input. It will be interesting to learn the results of this study and evaluate what, if any, impact the early disclosure requirements had on streamlining and expediting civil cases to resolution. The MIDP’s early and extensive disclosure requirements were met with mixed reactions from attorneys. This is despite the fact that the MIDP disclosure requirements mirrored those in Arizona state courts, so Arizona attorneys should be used to them. Some lauded the greater amount of information that parties were required early on to exchange about their claims and defenses. Others decried the costs incurred upfront to marshal all relevant facts and documents at the outset of a case, rather than awaiting discovery requests from opposing parties as set forth in the Federal Rules of Civil Procedure.

Regardless of one’s opinion about the MIDP and the ultimate impact of the project in terms of decreasing the time and cost of litigation, it is important to be aware that the project is terminating and understand how this will impact current and future cases.

If you have any questions about how the termination of MIDP impacts your case, or any other issues related to litigating your civil case in federal court, please consult legal counsel.