DTCI: Pathways Pilot Project: What it could mean for litigators

The Civil Case Management Pathways Pilot Project took flight on June 1. The Indiana Supreme Court established seven courts that will assign new cases to “pathways”: streamlined, complex and general. “The purpose of the pilot project is to decrease the amount of time until case disposition, significantly reduce discovery disputes, allow judges to spend more time on complicated issues, and increase the satisfaction of court users” by achieving “right-sized case management to best align court management and resources.”

Of interest is the February 2022 report by the Civil Litigation Taskforce that was the catalyst for the pathways pilot project. The task force focused on six key areas, two of which should be of particular interest to all litigators: case management and discovery. “The one-size-fits-all approach of the current rules of civil procedure too frequently results in disproportionate costs and delay in simple and uncontested matters. … Discovery is often a fractious issue in litigation, and it proved to be such in developing recommendations in reforms.”

Across the three pathways, two common themes emerge: (1) tailoring the pretrial process to the needs of the case using an early case management plan, and (2) developing a discovery plan that is proportional to the needs of the case. These parameters parallel the familiar standards in federal court; participating in a Federal Rule of Civil Procedure 16 conference and preparing a case management order with mandatory initial disclosures and a discovery plan that is proportional to the needs of the case is commonplace and expected in federal court. The pathways project adopts a similar approach at the beginning of any new case.

The current pilot project comes seven years to the day after our Supreme Court established Indiana’s commercial courts. The commercial courts implemented a similar approach in Commercial Court Rule 6. Mandatory initial disclosures, a case management plan and proportional discovery are the central focus of Commercial Court Rule 6. Rule 6 was “developed based upon more modern approaches to discovery as is generally reflected in the Federal Rules of Civil Procedure and related case law … .” (The Indiana Commercial Court Working Group Final Report and Recommendations, Nov. 1, 2018). At the conclusion of the three-year commercial court pilot project, the Supreme Court analyzed data and surveyed practitioners, all of which demonstrated that the commercial courts had advanced one of the benchmark goals of promoting more efficient dispute resolution. In re Indiana Com. Cts., 121 N.E.3d 537, 538 (Ind. 2019). The Commercial Court Rules were made permanent in June 2019 and have since expanded to 10 counties.

Our Supreme Court has been understandably cautious about modifying the Trial Rules and has taken a thoughtful approach to modernizing case management and discovery. Even the Civil Litigation Taskforce found reaching consensus recommendations for discovery reform to be a “fractious issue.” Ultimately, the task force recommended modifications to Indiana Trial Rule 16 to include a discovery order and to T.R. 26(B) to limit discovery to matters “proportional to the needs of the case … .”

The experience with the Indiana Commercial Courts provides cause for optimism that the current pilot project will advance the goals of more efficient and timely resolution across all civil cases. At the conclusion of the pathways pilot project two years from now, we should have the necessary data to confirm whether the successes of the commercial courts will be promoted by adopting the task force’s proposed amendments to T.R. 16 and 26(B). The modernization of case management and discovery should provide much-needed evolution of the Trial Rules to meet the challenges and impact technology has had on the practice.•

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David Beach is a partner in the Hammond office of Eichhorn & Eichhorn LLP and is a director of the Defense Trial Counsel of Indiana. Opinions expressed are those of the author.