Page 6 - Complex Litigation

S6 | MONDAY, MAY 22, 2017 | Complex Litigation
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A Judicial Perspective On the Management Of Complex Litigation
which declined coverage for the discharge. All motions brought by the defendants and third-party defendants have been resolved, answers led, and several dozen attorneys are meeting in a courthouse to work out a discovery plan to submit to the assigned judge. (Let’s also assume that, if there is no federal question or diversity jurisdiction and this action is pending in state court, the parties have been ordered or agreed to follow Rule 26(f)).
Here are some topics that the judge might expect the parties to discuss and report, some of which might be “beyond” what is required by Rule 26(f):
(1) Should the various civil actions that have survived motions be dismissed or be consolidated or otherwise coordinated for discovery? This would allow one judge to manage everything and provide the parties with a single judge to work with.
(2) Are there any stipulations that the parties might agree to under Rule 26(c) or a state equivalent that would resolve any question of fact or provide for some “streamlining” of discovery? Such stipula- tions would enable the judge and the par- ties to focus on discovery of disputed and material facts.
(3) Might the parties be “grouped” in any way for purposes of coordination? For example, might property owners or individuals alleging personal injuries be considered as separate groups? What about insurers and manufacturers? Such grouping could accomplish several things. First, lead or coordinating attorneys might be desig- nated to speak for her group on common issues. Second, discovery requests com- mon to each group might be designed. The judge could then pick and choose among groups for purposes of periodic conferences about matters unique to a group rather than require everyone to be present.
(4) Should there be phasing or sequenc- ing of discovery or separate discovery tracks? Would bifurcation of liability and damages be worthwhile? Doing so would create “firebreaks” in the litigation and afford opportunities for the judge to broach possible settlement or dispositive motions prior to what might be costly and time- consuming discovery related to damages.
(5) Can the parties reach agreement on the scope of discovery? For example, can the parties agree on the temporal and “spa- tial” limits of preservation of electronically stored information (ESI)? Agreement on ESI as well as “paper” and physical things might reduce the costs associated with retention and allow the parties and the judge to focus on what is important.
(6) When and should subpoenas issue to nonparties who have relevant informa- tion? Discovery from nonparties might seek information that is highly relevant to of marginal value. Deferring discovery of the latter from nonparties would further the goal of focusing on important things.
(7) Should written discovery be completed before depositions? This would allow the judge to resolve any disputes related to that discovery before depositions are conducted.
(8) How should discovery disputes be pre- sented to the judge? Is formal motion prac- tice necessary? Might the judge » Page S14
BY RONALD J. HEDGES
This Special Report is about complex litigation. Articles will address the perils and pitfalls of that subject from the perspective of attorneys and parties. However, it might be helpful to consider complex litigation from the viewpoint of another actor in the civil justice system. The author served as a U.S. magistrate judge in the District of New Jersey for 20+ years and managed complex civil actions of about every variety in that capacity and thereafter as a special master. These included actions commenced by state and federal agencies
RONALD J. HEDGES is senior counsel at Dentons US.
as well as class actions brought on behalf of individuals. Causes of action arose from, among other things, alleged harm to the environment, violations of securities law, and toxic torts. Hopefully, this particular article will provide some practice pointers for parties who are involved in complex litigation and the attorneys who appear on their behalf.
This article will focus on Rule 26(f) of the Federal Rules of Civil Procedure as a guide to the management of complex litigation. Why? First, the author is most familiar with proceed- ing under it. Second, and most important for attorneys and parties, Rule 26(f) provides a checklist of “things” to think about in which- ever court, state or federal, in which complex litigation is pending. Rule 26(f), in turn, lays a foundation for the initial scheduling order that
the assigned judge will issue under Rule 16(b). Let’s start with a “simple” hypotheti- cal: Assume there was a discharge of a toxic chemical from a facility. The chemical wound up in navigable rivers and ground- water and affected the water supply for adjacent communities. The discharge also impacted the health of individuals who were exposed to the chemical and the value of properties downstream from the discharge. Not surprisingly, all of this led to enforce- ment actions by state and federal agencies as well as class and individual actions for personal injuries and damage to proper- ty. The various plaintiffs asserted claims against the owner and operator of the facility as well as the manufacturer of the chemical and others. These defendants in turn third-partied others, including insurers
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