Wednesday, June 28, 2017
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.