October 01, 2018

A Critical Look at the Judicial Conference’s Mandatory Initial Discovery Pilot Project

Philadelphia partner Michael Daly and associate Mark Taticchi authored “A Critical Look at the Judicial Conference’s Mandatory Initial Discovery Pilot Project” for the October edition of Westlaw’s Class Actions Journal. The article is also posted online to the publication’s “Practitioner Insight Commentaries” page.

2017 saw the adoption of the Judicial Conference’s Mandatory Initial Discovery Pilot Project in the U.S. District Courts for the District of Arizona and the Northern District of Illinois. The Pilot Project’s reordering of the early phases of litigation has caused some consternation among litigants (and defendants in particular) because of the heavy burdens of discovery that the Pilot Project foists onto parties at the inception of the case—indeed, even before the court decides a defendant’s motion to dismiss. Even more importantly, the Pilot Project also conflicts with existing provisions of the Federal Rules of Civil Procedure (FRCP).

In their article, Mike and Mark outline the typical rulemaking process under the FRCP and provide an overview of the new Pilot Project, including ways it contradicts existing rules and processes. They also explain that the Pilot Project fails to meet the requirements for promulgation as a Federal Rule, a local rule, or an individual judge’s action, and therefore is not an exercise of rulemaking authority authorized by the Rules Enabling Act. They go on to argue that alternative sources of authority cannot save the Pilot Project from invalidity.

Mike and Mark conclude by contemplating what will happen next with the potential rule changes, strongly advocating for the Judicial Conference to rescind what they characterize as a problematic attempt at rulemaking. 
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