I. INTRODUCTION

The Resources recognize that there are different models for the appropriate role of judges in civil litigation. The primary models may be characterized as “active case management” and “discovery management.” The first is intended to be proactive and the latter reactive. The Resources are intended to assist judges who follow either.

There are “structural” reasons why a judge might follow one model and not the other. For example, in federal courts, civil actions are usually assigned to judges on an individual basis, that is, a particular civil action is assigned to one judge from commencement to conclusion. Known as “individualized case management” (“ICM”), this fosters active case management in the federal courts and in those state courts (or units thereof, such as dedicated business courts) that have adopted ICM.

On the other hand, many state courts, for reasons of volume and history, do not use ICM. Instead, from the commencement to conclusion of an action, different judges may preside over select events (such as an initial conference, discovery dispute or motion, etc.). This model makes active case management difficult or impossible to implement.

In addition to these structural factors, there may also be a judicial philosophy that drives the adoption of a particular model by an individual judge. This philosophical question arises from consideration of whether discovery (on which the Resources focus) is “party-driven” as opposed to “judge-driven.” There are judges who, for example, deem it appropriate to bring parties in on a regular basis to work out discovery procedures and address anticipated discovery problems. There are other judges who believe that, given the nature of civil litigation in our common law tradition, parties should drive discovery and the pace of a particular action. These judges only deal with problems after they have arisen. Large caseloads may also necessitate this model of discovery management.

With the goals of Rule 1 of the Federal Rules of Civil Procedure (“FRCP”) in mind, which is to secure the just, speedy and inexpensive resolution of civil litigation, the Resources urge the adoption of the active case management model whenever possible. Discovery as practiced in the United States creates the potential for protracted disputes and the imposition of substantial burdens on the resources of the courts and parties. The discovery of electronic information, such as email, the content of social media, or information from databases (“e-discovery”), has multiplied those burdens. Active case management can prevent disputes and minimize burdens.

By urging the active case management model, the Resources do not mean to imply that judges should be routinely making discovery decisions for the parties. Discovery is designed to be, and remains, party-driven. Active case management provides a strong framework in which the parties should develop and execute their own cooperative discovery plans. Parties are provided a clear set of expectations designed to move the evidence-gathering phase of the litigation forward in a speedy and inexpensive way, without the cost, delay, and gamesmanship associated with unmanaged discovery. The dual role of the judge under active case management is: first, to facilitate the cooperative formulation and execution of the discovery plan, and, second, to intervene if the parties fail to reach agreement or a dispute arises. The recommendations and sample orders collected here have been selected and reviewed with the goal of encouraging the parties to cooperate in the conduct of discovery to the greatest extent possible, rather than imposing judicially-dictated solutions.

These Resources recognize, however, that being a “discovery manager,” as opposed to an “active case manager,” may be the only workable model for a number of judges who can only intervene after a discovery dispute has arisen. The Resources provide practical assistance to all judges.