Initial Discovery Protocols
The discovery process in civil litigation often generates contentious and costly disputes that lead to unwarranted delays and inhibit access to justice, for parties on both sides of the “v.” Through the Initial Discovery Protocols project, IAALS has created pattern discovery protocols specific to particular types of cases. These protocols require automatic initial disclosure of certain documents by both parties, making the discovery process more efficient and more targeted, and significantly reducing conflict, cost, and delay.
- To develop a set of case-type-specific documents for automatic initial disclosures and support their implementation by individual federal and state trial court judges, with the ultimate goal of reducing cost and delay in the discovery process.
In 2010, the Civil Rules Advisory Committee sponsored a conference at Duke University School of Law to explore the current costs of civil litigation, particularly related to discovery, with the goal of developing solutions. One of the ideas that had widespread consensus coming out of the meeting was the idea of developing pattern discovery specific to particular case types. By requiring automatic initial disclosure of certain agreed upon documents at the beginning of the case, the discovery disputes could be limited and the overall case could be more focused and efficient.
Following the Duke conference, IAALS has focused on creating these pattern discovery protocols in a number of areas, including employment cases, fair labor standards act cases, disaster cases, and now pandemic-related property insurance business interruption cases.
IAALS formerly housed this work under its Rule One Initiative until 2018.
In 2020, IAALS developed its fourth set of initial discovery protocols for commercial property insurance claims arising from the COVID-19 pandemic. The Initial Discovery Protocols for Business Interruption Insurance Litigation Arising from the COVID-19 Pandemic and Similar Public Health Threats (Pandemic Protocols) tackle another category of cases that have a clear core of basic information the parties need to exchange in virtually every case. This is also a case type where the litigants, lawyers, and courts are all vitally interested in addressing these claims fairly, efficiently, and cost effectively so as to expedite the recovery process.
For this project, IAALS brought together nationally renowned attorneys from both sides of the “v.,” as well as judges, to develop streamlined, pattern protocols that govern initial disclosures. The protocols build on past protocol efforts, as well as the experience of the experts around the table, to set forth an agreed upon list of information and documents to be produced by the insureds and insurers early in the case.
In 2019, IAALS developed initial discovery protocols for disaster cases—another categories of cases that have a clear core of basic information the parties need to exchange in virtually every case. This is also a case type where the litigants, lawyers, and courts are all vitally interested in addressing these claims fairly, efficiently, and cost effectively so as to expedite the recovery process in these cases.
IAALS brought nationally renowned attorneys from all perspectives—including plaintiff and defense, FEMA, the Texas U.S. Attorney’s office, and state and federal judges—together to develop streamlined, pattern protocols for exchange of information in first-party insurance cases arising from disasters, both natural and man-made. The protocols take lessons learned from case management orders in past disaster litigations, as well as the experience of the experts around the table, to set forth an agreed upon list of information and documents to be produced by the insureds and insurers early in the case.
Development of these protocols is made possible by the support of The Foundation of the American College of Trial Lawyers.
IAALS formed a similar committee of balanced experts in 2016 to replicate their successes for Fair Labor Standards Act (FLSA) cases, which are prevalent in our federal district courts and lend themselves well to pattern initial discovery. The Initial Discovery Protocols for Fair Labor Standards Act Cases Not Pleaded as Collective Actions, issued in January 2018, were shared with judges around the country and provide a new pretrial procedure with the goal of exchanging information early to frame the issues and make any additional discovery more efficient and targeted.
Development of these protocols was made possible by the support of The Foundation of the American College of Trial Lawyers.
Under the direction of the Standing Committee and the Civil Rules Advisory Committee, IAALS convened a nationwide committee of experienced employment attorneys, including plaintiff and defense attorneys, to develop Initial Discovery Protocols for Employment Cases Alleging Adverse Action. The committee members worked together to create a list of documents for automatic discovery in employment cases. The Protocols were presented to the Civil Rules Advisory Committee in November 2011 and approved for implementation in pilot projects across the nation, in the courtrooms of judges who wish to participate. The protocols create a new category of information exchange, replacing initial disclosures with initial discovery specific to these cases.
IAALS continues to monitor use of the protocols in jurisdictions around the country, and the FJC has issued two reports on the pilot projects, the first Report on Pilot Project Regarding Initial Discovery Protocols for Employment Cases Alleging Adverse Action in October 2015 and the second report in October 2018. The studies have found less motions practice in the protocols cases, but there has not been a significant difference in case processing times. One take away may be that judges need to pair these protocols with a modified case management schedule, including an earlier discovery deadline, in order to see the full effect of such reforms.
A modified version of the Employment Protocols is also being used to further mediation in the Southern District of New York. That court issued an Order in October of 2015 that requires all counseled employment discrimination cases, except those under the FLSA, to be automatically referred to a mediation program. As part of the mediation program, the parties must engage in an early exchange of documents in order to frame the issues for mediation.
Jurisdictions that have adopted the Protocols district-wide:
- District of Oregon: Local Rule Amendments Adopt Model Patent Order, Employment Protocols
- District of Connecticut: Employment Protocols Adopted District-Wide
- Northern District of California: Initial Discovery Protocols Adopted for Employment Cases
To explore the full map of civil justice reforms around the country, click here.