Discovery Protocol Results in More Settlements, Fewer Motions to Compel

I don’t know how I missed this when it came out, but better late than never.  The Federal Judicial Center has published a brief empirical study of the pilot project on initial discovery protocols in employment cases.  Emery G. Lee & Jason A. Cantone, Report on Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action (Oct. 2015).

One of the ideas floated at the 2010 conference on civil litigation held at Duke Law School was that pattern discovery (set forms) in particular case types might reduce discovery battles (and hence, “cost and delay”).  Another, related idea expressed at the conference was that initial required disclosures under FRCP 26(a) were generally not helpful.  The Advisory Committee did not officially pursue these ideas (in fact, it abolished all the forms following the FRCP).  However, a group of plaintiffs’ and defendants’ attorneys experienced in employment cases negotiated and finalized discovery protocols for those cases that replace the standard initial disclosures.  Judge John G. Koeltl and the Institute for the Advancement of the American Legal System (IAALS) facilitated the project.   

The protocols cover only cases alleging adverse employment action.  Certain cases are exempt from the protocols: class actions, and cases alleging only discrimination in hiring, harassment, or violations of FLSA, ADA, FMLA, or ERISA.

The protocols are posted on the FJC's website.  About 75 federal district court judges have adopted the protocols, and the FJC has now studied their effect.

As described by the FJC:

The Protocols create a new category of information exchange, replacing initial disclosures with initial discovery specific to employment cases alleging adverse action. This discovery is provided automatically by both sides within 30 days of the defendant’s responsive pleading or motion. While the parties’ subsequent right to discovery under the F.R.C.P. is not affected, the amount and type of information initially exchanged ought to focus the disputed issues, streamline the discovery process, and minimize opportunities for gamesmanship. The Protocols are accompanied by a standing order for their implementation by individual judges in the pilot project, as well as a model protective order that the attorneys and the judge can use [as] a basis for discussion.

For example, among the many items the plaintiff is required to produce to the defendant are “diary, journal, and calendar entries maintained by the plaintiff concerning the factual allegations or claims at issue in this lawsuit,” and “the plaintiff’s current resume(s).”  Among the many items the defendant is required to produce to the plaintiff are “the plaintiff’s personnel file, in any form, maintained by the defendant, including files concerning the plaintiff maintained by the plaintiff’s supervisor(s), manager(s), or the defendant’s human resources representative(s), irrespective of the relevant time period” and “the plaintiff’s performance evaluations and formal discipline.”  

So now to the FJC’s study of the effect of the pilot project.  The FJC constructed a sample of 477 cases in the pilot program and a comparison sample (random and nationwide) of 672 recently-terminated cases alleging employment discrimination not in the pilot program.  Here are some of the results.  Please note that I constructed the table below based on the text in the FJC’s report:

	Pilot cases	Non-pilot cases	p value (if given)
Number of cases	477	672
Mean disposition time in days	312	328	.241
Median disposition time in days	275	286
Case outcomes:
o   Settlement	51%	30%
o   Voluntary dismissal (which could include settlement, but not clear from docket)	27%	35%
o   Dismissed on Rule 12 motion	7%	13%
o   Resolved by summary judgment	7%	12%
o   Trial	<1%	2%
o   Other (DWP, failure to exhaust)	7%	8%
Motions to dismiss filed	23%	31%
Motions for summary judgment filed	11%	24%
One or more discovery motions filed*	12%	21%	<.001**

*Includes motions to compel and motions for protective order (apparently includes only contested, not stipulated, motions for protective order).

**Statistically significant.

Some of these findings are cause for celebration.  There were significantly fewer discovery motions filed in the pilot cases.  The pilot cases were more likely to result in settlement.  The pilot cases were less frequently dismissed on motion or resolved by summary judgment.  Fewer such motions were even filed in the pilot cases.   

As for case disposition time, the FJC seems almost apologetic that pilot cases were resolved faster than, but not statistically significantly faster than, non-pilot cases, stating, “The pilot does not, in short, appear to have an appreciable effect on reducing delay.”  But whether pilot or non-pilot, these cases last about nine or ten months from filing to disposition.  How much faster does anyone want?  Having practiced law in the 1980s and 1990s (including in Illinois state courts), I’d like to suggest that this is a rocket docket.  Once we account for the preliminary time periods allowed by the FRCP (up to 90 days to serve the complaint after filing and then up to 90 days to issue the scheduling order), and add a standard six months to complete discovery, that’s what we get – nine or ten months.  Where’s the “delay”?  (Not blaming the FJC for using this term: it’s the mantra used by discovery “reformers.”)

The FJC is, as always, careful to note the limitations of its study.  First, judges are free to adopt or not adopt the protocols, so the pilot cases came from only ten districts, and 75% of the pilot cases were in Connecticut or the Southern District of New York.  Second, because the initial disclosures were not usually docketed (and under FRCP 5, they would not be required to be), the FJC could not determine whether the parties “actually complied with the discovery protocols and exchanged the required initial disclosures.”  Finally, “this report makes no claim that the only factor differing between the pilot and comparison cases was the pattern discovery in the former,” and “caution is warranted before concluding that the pilot program caused the above described differences between the pilot and comparison cases.”

In my opinion, the pattern discovery approach should be pursued in more types of cases.  Having experienced attorneys on both sides negotiate protocols to produce the types of documents and information repeatedly sought in discovery in a particular kind of case represents a far more sensible, concrete, and helpful approach to improving discovery than the adoption of a vague “proportionality” standard.