Northern District Pilots Initial Discovery Protocols for Employment Cases Alleging Adverse Action

February 1, 2018

Starting February 1, 2018, the Northern District of California will participate for one year in a Pilot Program for Initial Discovery Protocols for Employment Cases Alleging Adverse Action (the "Protocols"), initiated by the Advisory Committee on Federal Rules of Civil Procedure. The Protocols provide a new pretrial procedure for certain types of federal employment cases.

Exempt from the Protocols are class actions and cases exclusively alleging certain enumerated causes of action such as discrimination in hiring, harassment/hostile work environment and/or violations of wage and hour laws under the Fair Labor Standards Act (FLSA); the Americans with Disabilities Act (ADA); the Family Medical Leave Act (FMLA); and the Employee Retirement Income Security Act (ERISA).  

The stated purpose of the Protocols is to "encourage parties and their counsel to exchange the most relevant information and documents early in the case, to assist in framing the issues to be resolved and to plan for more efficient and targeted discovery." Individual judges throughout the United States District Courts will pilot test the Protocols and the Federal Judicial Center will evaluate the effectiveness of the Protocols in making litigation more efficient. 

This project grew out of the 2010 Conference on Civil Litigation at Duke University, sponsored by the Judicial Conference Advisory Committee on Civil Rules for the purpose of collecting recommendations for the improvement of civil procedures. Attendees expressed support for the idea of case-type-specific “pattern discovery” as a possible solution to the problems of unnecessary cost and delay. They also arrived at a consensus that employment cases, “regularly litigated and [presenting] recurring issues,” would be a good area for experimentation with the concept.  

In cases subject to the Protocols, General Order 71 requires the parties, within 30 days of the defendant’s submission of a responsive pleading or motion, to disclose to each other the documents and information described in the Protocols. 

The Protocols are not intended to preclude or to modify parties' rights to discovery as provided by the F.R.C.P. and other applicable local rules, but they are intended to supersede the parties’ obligations to make initial disclosures pursuant to F.R.C.P. 26(a)(1).

Parties in cases to which the Protocols apply will find applicable language and instructions in the Initial Case Management Conference Scheduling Order in their case and on the case docket.