United States: Guest Post – The Federal Judicial Center's Mandatory Initial Discovery Pilot Project Complicates Litigation In Adopting Districts

Last Updated: February 12 2018
Article by James Beck

Today's guest post is by Reed Smith's Lisa Baird, who has written about her recent experience with mandatory initial discovery, as practiced in a "Pilot Project" in place in certain federal district courts. It was interesting – in the "stop and think before you remove to federal court" sense of interesting. As always our guest posters deserve 100% of the credit, and any blame, for their guest posts. The floor is yours, Lisa.


Last summer, my firm's clients faced two matters filed in rapid succession in the District of Arizona and the Northern District of Illinois. As luck would have it, these are the only two districts participating in the Federal Judicial Center's Mandatory Initial Discovery Pilot Project (MIDPP), and that meant we were in for a bit of a surprise.

When the pilot project first was announced in April 2017, it received a smattering of attention in the legal press before seemingly fading from view. So you may be asking yourself (as I did), what is the MIDPP? The short answer is that, in the adopting courts, it has worked significant changes to the Federal Rules of Civil Procedure regarding discovery and responsive pleading without following the usual procedures for rules amendments. It also has up-ended the important principle from Ashcroft v. Iqbal, 556 U.S. 662 (2009), that an inadequate complaint "does not unlock the doors of discovery."

Some important takeaways about the MIDPP are that:

  • Answers must be filed even if a motion to dismiss "or other preliminary motion" has been or will be filed, unless the court defers the responsive pleading deadline "for good cause" and the motion to dismiss is on one of three specified grounds: (1) lack of subject matter or personal jurisdiction; (2) sovereign immunity; or (3) absolute or qualified immunity of a public official.
  • Mandatory initial disclosures—which supersede the initial disclosures otherwise required by Federal Rule of Civil Procedure 26(a)(1)—are due within 30 days of the response to the complaint. A 30-day extension of this deadline is provided for only if the parties certify that they have a good faith belief the case will settle within that additional 30-day period.
  • The MIDPP's mandatory initial disclosures include:

    • Names and contact information for persons likely to have discoverable information, along with a description of the information they are believed to possess;
    • Written or recorded witness statements, unless privilege or work product is asserted;
    • A list of documents, electronically stored information (ESI), and tangible things that may be relevant and are known to exist, regardless of who possesses them; and
    • A statement of facts relevant to each claim or defense "and the legal theories upon which it is based."
  • All hard copy documents and ESI falling within the subject matter of the initial disclosures must be produced within 40 days after service of the initial disclosures themselves "unless the court orders otherwise." In other words, ESI usually will have to be produced about 90 days after service of the complaint (service date + 21 days for responsive pleading + 30 days for mandatory initial disclosures + 40 days to make ESI production).
  • The parties have a continuing duty to supplement their productions within 30 days of the discovery of any new ESI.
  • Parties must disclose "facts relevant to the claims and defenses in the case, whether favorable or unfavorable, and regardless of whether they intend to use the information in presenting their claims or defenses."

Make no mistake: the discovery and answering obligations imposed by the MIDPP are onerous and there is little flexibility in the model documents as written. In practice, it appears that individual judges sometimes are willing to exercise discretion to continue the "mandatory" deadlines when reason and good judgment dictate doing so, even though the MIDPP contemplates only limited extensions in very narrow circumstances. Given that one of the initial messages about the MIDPP was that its requirements were mandatory and parties could not opt out of the required initial disclosures, however, it probably would be best not to count on routine extensions or exceptions.

The stated purpose behind the MIDPP certainly is laudable enough: reducing cost and delay in litigation. But the net effect in more complex cases—such as product liability actions filed against drug and medical device manufacturers—may be the opposite.

In drug and device product liability litigation, discovery burdens are unequal and fall more heavily on defendants, and there is no reason to think that will change under the MIDPP. Moreover, motions to dismiss are an essential tool for reducing costs and speeding up case resolution in drug and device cases because of unique, dispositive issues such as preemption. Yet because the MIDPP forces the parties into immediate, extensive, mandatory discovery and forces the defendant to answer before any motion to dismiss is heard or decided, sweeping litigation may be well underway before the court decides that the case lacks sufficient merit to proceed.

For example, manufacturers of medical devices with premarket approval rely heavily on Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), and the often-dispositive issue of preemption. But the MIDPP forces these defendants to engage in early, mandatory discovery and to file an answer the complaint, even when the defendant's preemption-based motion to dismiss is pending and likely dispositive of the lawsuit.

Perhaps the only silver lining for drug and device manufacturers is that MDL-bound cases are among the few types of civil cases excluded from the MIDPP.

For those interested in the details, the District of Arizona rolled out its MIDPP for cases filed on or after May 1, 2017 though General Order 17-08, and the Northern District of Illinois rolled it out for cases filed on or after June 1, 2017 (and assigned to participating judges) through General Order 17-2005 and a Standing Order. There also are users' manuals for both courts ( D. Ariz. and N.D. Ill.) as well as checklists (D. Ariz. and N.D. Ill.). This pilot project is meant to last three years, and so far it is limited to these two districts.

Surely there is room for improvement, however. If not wholesale revisions that acknowledge the Supreme Court's pronouncement in Iqbal that the "doors of discovery" do not unlock for a deficient complaint, then perhaps an expansion of the lists of motions which defer the duties to answer and provide the mandatory discovery. Or a provision allowing the parties to agree that the deadlines should be delayed in a given case, when a potentially meritorious motion to dismiss is pending. Or explicit recognition that courts may extend the deadlines for answering and providing mandatory discovery in their discretion. Or, if getting on with it is so important, then a companion requirement for expedited motions to dismiss so that they can be briefed and ruled on before any duty to answer and provide mandatory discovery arises.

The Federal Judicial Center suggests providing comments about the MIDPP (or any other civil procedure issue) to the Committee on Rules of Practice & Procedure for the U.S. Courts at its email address. The District of Arizona has an email box for providing comments to that court; it also has an annual conference on March 9, 2018, and one would think the MIDPP would be a central topic of discussion during the civil breakout session. The Northern District of Illinois has an email box for comments on proposed amendments to the local rules, and although that email address is not identified as being for the MIDPP specifically, one would think that it would work for that purpose as well.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions