Rule 213 Simultaneous Disclosure Pilot Program
Writ of Prohibition (PDF)
Objection to Simultaneous Disclosure (PDF)
- We would like to thank Robert Smyth of Donohue Brown Mathewson & Smyth and David Hall of Hall, Prangle & Schoonveld, LLC for sharing these documents with us.
Administrative Order - Simultaneous Disclosure of SCR 213 (f)(3) Witnesses (PDF)
The IDC has learned that as of 2:30 PM today, Judge Maddux and Judge O'Hara were served with copies of a Motion for Leave to File a Writ of Prohibition or for Supervisory Order, enjoining the enforcement of the Law Division Administrative Order 11-3.
The Notice of Filing, the Original Motion for Leave To File, and the Proposed Order can be viewed above. The Supporting Record is quite voluminous and is being copied now. We expect to recieve a copy of that tomorrow.
These documents are filed in the case of Brown v. Advocate Northside Health Network, et. al., 09-L-9463, by the law firm of Johnson & Bell, Ltd., representing Advocate and three individual physician defendants, with retired Judge Donald J. O'Brien, of counsel.
The documents have been forwarded to Chief Judge Timothy C. Evans, for assignment to the Illinois Attorney General's Office for representation of Judge Maddux and Judge O'Hara.
We will continue to keep you up to date on the developments with the Rule 213 Simultaneous Disclosure Pilot Program.
- On October 4, 2011, IDC President Anne Oldenburg attended the third meeting of the 213 Pilot Project committee. As of that date, some 24 cases had been placed into the pool of cases. Of those cases, only one case involved construction litigation and the remaining cases are medical malpractice cases. There was a discussion about the lack of products liability and construction cases being put into the pool. Judge Flanagan advised that she had specifically investigated the inventory of these types of cases and that there were significantly lower numbers than medical malpractice, and thus we could no longer anticipate that there would be an equal distribution of medical construction and products cases. Representatives of defense objected to putting any more malpractice cases into the pool as it would impact the statistics. The judge suggested the consideration of other complex litigation cases. Ultimately, it was determined that any complex litigation could be a candidate for inclusion so long as the case involved expert witnesses on both sides and otherwise met the established criteria.
An additonal 8 cases were screened and added to the pool. The screening process merely involves a recitation of the status of discovery as provided in correspondence from proposing counsel. So long as a case meets the criteria regarding the status of completion of fact discovery, it is placed in the pool. Judge Flanagan requested that the committee retroactively approve two construction cases for inclusion. These cases are pending on the call of the Judge. She ordered simutaneous disclosure in August (prior to any administrative order) and the cases are allegedly now in expert depostions. According to the Judge there were no issues with the process.
There was a discussion regarding the process for submission of cases via correspondence to the Judge. Plaintiff's attorneys are sending letters proposing inclusion without copying attorneys for the defense. I personally experienced this in a case and had discussions with plaintiffs cousnel. He represented that he thought we were provided copies and admitted that such notification should have occured. Judge Flanagan informed the committtee that she assumed such notice was being provided. The failure to do so does raise the issue of ex parte communications.
The committee is set to reconvene the first week of November. Information regarding the process is being provided to committee members via email updates.
The IDC has established a 213 Task Force to evaluate the project and investigate strategies. We are actively working on different tactics to respond to issues with this process. We will keep you posted.
- The IDC will host a Summit on Simultaneous Disclosure on Friday, September 23, 2011 at the offices of Johnson & Bell, Ltd., 33 W. Monroe, #2700, Chicago.
The purpose of the Summit is to engage in an open exchange of information regarding the Cook County Supreme Court Rule 213 Pilot Project so that we can formulate strategies for defense counsel in managing simultaneous disclosure.
Space is limited for the Summit. Please contact the IDC office at firstname.lastname@example.org if you are interested in attending.
- On September 6, 2011, IDC President Anne M. Oldenburg of Alholm, Monahan, Klauke, Hay & Oldenburg, LLC participated in a meeting of the Simultaneous Disclosure Pilot Project Committee. The Committee met with Judge Kathy Flanagan. Following are the notes from the meeting.
1. The Committee is composed of a cross section of plaintiff counsel, defense counsel bar association representatives and the Vice President of Claims of ISMIE (llinois State Medical Insurance Exchange). There are a total of seventeen members on the Committee.
2. The Pilot Project concept was proposed subsequent to the judges attendance at an American Board of Trial Advocates meeting where it was suggested that based upon studies that determined a rule ordering simultaneous disclosure of experts would decrease costs and the amount of time spent on discovery.
3. The Illinois Supreme Court Rules give authority to the judiciary to establish any discovery schedule to promote the expeditious completion of discovery. Rule 201 (e) allows for any sequence.
4. Supreme Court Rule 218 suggests that the initial case management conference include a disclosure of experts, but this practice is not followed in Cook County. Federal Rule 26 suggests an initial mandatory disclosure of experts at the first scheduling conference. According to the judge, this practice is being followed in many states including CA, NY, CO, MO, AZ OH, NC and numerous others. There was a specific study done in AZ which found that the simultaneous disclosure resulted in lower costs and decreased time spent in discovery.
5. The Project will include a very limited inventory of cases. Particapation is voluntary. The cases will be managed by Judge Flanagan, Judge Kogan and Judge O'Hara. It is anticipated that each judge will manage 25 cases from the project. The cases will be screened and approved by the committee. Judge Flanagan is accepting cases for screening where both plaintiff and defense attorneys agree to participate. The case must be in the posture where all fact discovery is complete and the parties are ready for a 213(f) (3) disclosure schedule. The cases will be given a schedule for simultaneous disclosure of experts. Thereafter, there will be 30 days to file suppelmental reports. Subsequent to supplements the depositions will proceed. Plaintiff is to go first. The depositions are to be completed within 60-90 days. The Project will continue until June 1, 2012, at which time the Committee will evaluate the statistics and make recommendations. Cases to be considered for inclusion in the program are to be submitted to Judge Flanagan in the next 2 weeks.
6. Judge Flanagan has already investigated issues relating to challenges for unconstitutionality and requests for interlocutory appeals. Because the Supreme Court rules were approved by the supreme court challenges regarding the constitutionality are without basis. With regard to the appeal, the discovery issues are not subject to the provisions regarding interlocutory appeal.
7. The Committee is to reconvene on September 20, 2011, at 1:00 p.m. in room 2005.
The IDC will continue to keep you up to date on the Pilot Project and the work of the Committee. Please contact us with your concerns and suggestions at email@example.com.
- A motion judge in Cook County has championed a pilot project in Medical Malpractice, Product Liability and some Construction cases which calls for the simultaneous disclosure of plaintiffs' and defendants' experts and opinions. The Program will begin September 1 and is scheduled to run for nine months. Memos outlining the program are attached.
IDC President Anne M. Oldenburg of Alholhm, Monahan, Klauke, Hay & Oldenburg will sit on the Pilot Project Study Committee to evaluate the Project and will also meet with Judge Flanagan to discuss the Pilot Project and our concerns with same.
The Pilot Project Study Committee will consist of representatives of the plaintiffs' bar, defense bar and the insurance industry. The Study Committee will monitor the Project and at the end of the nine months will give a recommendation to continue, modify or terminate the project, based on all input and reaction received.
We need to hear from all of our members, especially those members practicing in Cook County so that we may offer a considered, intelligent response to this pilot program. Please take a few moments and share your views with us. What are the pros and cons of simultaneous disclosure? Do you and your clients believe it will lessen or increase costs? Why? Do you believe it will lessen or increase the time required to complete discovery? Why? Presently, do you believe defendants are given adequate time from plaintiffs' expert disclosures to disclose defense experts and opinions?
It is urgent that you respond with your position on the simultaneous disclosure rule so that we may convey our thoughts and concerns on this issue. Please email your position to the IDC office at firstname.lastname@example.org or you may also post your comments on the IDC Members Only LinkedIn Group.