Chapter 20-3 Considerations Before Pleading Level 2

• Jurisdiction: United States

20-3 Considerations Before Pleading Level 2

Level 2 is underutilized by plaintiff attorneys, probably based in part on the knowledge that a defendant can automatically opt out of Level 2 in favor of Level 3, combined with the seeming complexity of computing Level 2 deadlines. Yet Level 2 should be pleaded by plaintiffs far more often than it is, for one simple reason: It is often the plaintiff who wants to press forward with the case, and by pleading Level 2 at the outset of the case the plaintiff is communicating a willingness to the court to be ready for trial within approximately one year from filing of the case. This gives the plaintiff a stronger position for negotiation of a Level 3 order than if the plaintiff had ceded the need for something other than Level 2 deadlines from the outset. It is true that the court must create a Level 3 order if requested to do so by any party,⁴³ but there is nothing that prevents the court from ordering deadlines which essentially track Level 2 when the plaintiff has already expressed a willingness and need for compliance with Level 2.

Of course, this presumes that the plaintiff truly does understand how to compute Level 2 deadlines and is honestly prepared to comply with them. That's why the remainder of this section explains the computation of Level 2 deadlines and the limits on Level 2 discovery.

Discovery Deadline. The discovery deadline is the first deadline to calendar for Level 2, but its computation is completely different from and more complex than Level 1. Although the discovery period starts with the filing of the suit⁴⁴ (which allows discovery requests to be served with the petition), the discovery deadline can't be computed until one of three possible events occurs: (1) written discovery is served by any party, triggering a due date for that discovery; (2) an oral deposition is taken by any party; or (3) a trial date is set. The discovery deadline is then computed as the earliest of these three possibilities:
(i) 30 days before the date set for trial, or
(ii) nine months after the date of the first oral deposition, or
(iii) nine months after the due date (not the service date, and not the actual answer date) of the first response to written discovery.

Practically speaking, in many cases a party will initiate an oral deposition or send written discovery requests well before there is any trial setting, which allows calendaring of a tentative discovery deadline. The discovery deadline is only tentative because it is still subject to be trumped by a trial setting which is less than 30 days after the tentative discovery deadline, meaning that a new discovery...