SDNY § 1983 Plan, Instituted to Achieve Efficiencies, Under Review

July 19, 2013

Federal judges in the Southern District of New York are currently evaluating a pilot project, known as the SDNY Pilot § 1983 Plan, that defines how cases alleging false arrest, excessive force, or malicious prosecution are handled against the NYPD. While the project was instituted to address concerns regarding the increasing number of § 1983 cases being filed, and the increasing length of time to bring those cases to disposition, the Court's request for feedback has resulted in a critical response by the plaintiffs' bar.

The § 1983 Plan was original developed in 2010 by a working group of judges from the Southern District of New York, plaintiffs' attorneys, and members of the New York City Law Department. The purpose of the Plan, as described in the SDNY's White Paper, is to reduce the time to disposition of the typical § 1983 cases brought against the NYPD and its officers and improve the overall efficient management of these cases. The timetable for pilot cases is altered, so that the City generally has 80 days to file an answer rather than the 21 days otherwise allowed under the standard federal rules. In addition, the rules outline limited categories of discovery for both parties to be produced within 28 days after the first defendant files its answer. All other discovery is stayed while the parties engage in settlement negotiations. If a stipulation for dismissal is not filed within three months of the filing of the first answer, the parties are required to appear at a mediation session with a SDNY mediator. The § 1983 Plan offers the parties the option of requesting referral to a Magistrate Judge for settlement, or to request an order removing the case from the Plan.

Case-type-specific rules can lead to streamlining of the litigation process. The Southern District of New York provides a successful example in its piloting of the Initial Discovery Protocols in its employment cases. In the employment protocols pilot, which was developed by a nationwide committee of attorneys with IAALS assistance, core information is automatically shared as part of pre-defined initial disclosures at the beginning of employment cases alleging adverse action, eliminating the cost and delay of having to serve and respond to document requests and interrogatories. While the § 1983 Plan sets forth categories of information that are to be shared early in the case, discovery is otherwise put on hold.  Cases only proceed to full discovery after the parties engage in required mediation, which attorneys report can take about six months. Critics of the Plan have suggested this extended period with limited discovery forces plaintiffs to settle without seeing all relevant evidence.

We applaud the effort to shorten the process and to limit and identify appropriate discovery. However, it is important to balance the process for both the defendant and the plaintiff, and accordingly, the longer period of response time for the defendant may or may not actually serve those goals. Similarly, our focus on making the process itself more effective does not generally include support for mandatory mediation or arbitration because it can interfere with the just and speedy progress of the case. Here, if the mediation takes six months, that would be our concern. Ultimately, we urge the collection of data from the pilot project within a defined period of time (18 months perhaps) and review of that data by an inclusive committee to decide which of the reforms are achieving their goals.