Coordinating Discovery

A great deal has been written about coordinating discovery. The following table summarizes types of discovery that can be done jointly as well as issues that may arise in doing so.

Joint document depository
  • Common benefit fund issues may arise.
  • Documents/depositions should be collected/taken only once if possible, keeping in mind evidentiary differences between jurisdictions; a joint case management order may be helpful to memorialize appropriate procedures.
  • A Web-based depository is more easily shared.
Coordinated scheduling of discovery deadlines
  • Consider how far the litigation has developed in each jurisdiction.  Later courts may be able to benefit from the work done in the earlier ones; on the other hand, sometimes a “catching up period” can allow time for mediation or early global settlement discussions. However, you will need to keep in mind what effect slowing down will have on trial dates, settlement discussions, and completing your docket within applicable guidelines.
Shared discovery master (this was done successfully in the Avandia litigation)
  • Some jurisdictions do not allow, or strongly discourage, use of special masters.
  • Some judges prefer to handle discovery themselves.
  • Cost is also a consideration.
  • Magistrate judges, who may serve as discovery masters, are a resource for the whole court, not to be monopolized by one case.
  • If there is not one shared discovery master but several different ones, discovery masters should communicate.
Uniform or joint orders, such as preservation orders, deposition protocol, plaintiff’s/defendant’s fact sheet or “certificate of merit” orders
  • Up-front work is required for judges to agree on orders consistent with all involved jurisdictions’ rules.
Cross-noticing depositions
  • Ensure that all involved parties have the opportunity to ask questions (while preventing redundancy).
  • If corporate depositions are conducted internationally, a special master may be appointed so that re-deposition will be unnecessary. (In the Yaz litigation, a retired judge serving as special master traveled to Germany to rule on objections in global depositions.)
Encouraging shared experts
  • Parties can save resources by using the same expert in multiple jurisdictions, but they may feel that using different experts will give them multiple chances to obtain a favorable result.
Designating one judge to rule on discovery objections or emergency motions
  • Judges may need to alter the ruling to suit their own jurisdictions (this was done successfully in the Yaz litigation).
  • The independence of the respective jurisdictions must be maintained.
  • As a practical matter, the jurisdiction with the most liberal discovery rules will control.
Identifying discovery necessary for productive early settlement discussions
  • The prospect of early settlement of certain issues or cases may be enhanced by early, focused discovery.
  • A moratorium on plenary discovery may be advisable in some instances so that key early settlement-related discovery can be promptly completed.
“Science day” (tutorials to educate the court about the scientific issues relevant to the litigation)
  • All parties must have the opportunity to contribute and attend, or ex parte concerns may arise.
  • Some judges may be able to attend and sit together on the bench, some may attend by videoconference, and other judges can be given the transcript afterwards.
Daubert/Frye hearings
  • This is only feasible if the judges involved are comfortable presiding together and potentially ruling differently.

In some instances, federal and state judges have held Daubert/Frye hearings or technical tutorials. Joint proceedings can be made to work, but keep in mind that not every judge will be comfortable with this approach. Some judges may feel that this threatens their autonomy and independence—for example, they may feel uncomfortable hearing the same testimony but reaching a different conclusion. You should respect these preferences. If judges in other jurisdictions are comfortable sitting together, be sure to work out the ground rules prior to the hearing. In both the Orthopedic Bone Screw litigation and the Avandia litigation, joint Daubert/Frye hearings worked well.

In your coordination efforts, remember that privilege rules vary among jurisdictions. For example, if you have ruled in favor of disclosure of materials that may be privileged in other jurisdictions, it is courteous to alert the other judges that the parties may try to introduce the material in their courts.

See examples and model orders

Next section: Settlement

Suggested readings

Federal Judicial Center, Manual for Complex Litigation, Fourth (2004), § 20.313, Pretrial discovery.

Hon. Jane R. Roth, Coordination of Litigation in State and Federal Courts, in Business Commercial Litigation in Federal Court 147 (Robert L. Haig, ed., 3d ed. 2011), §§15:21–27.

Barbara J. Rothstein & Catherine R. Borden, Managing Multidistrict Litigation in Products Liability Cases: A Pocket Guide for Transferee Judges (Federal Judicial Center & Judicial Panel on Multidistrict Litigation, 2011), pp. 25-26, 31-36.

Barbara J. Rothstein, Francis E. McGovern, & Sarah Jael Dion, A Model Mass Tort: The PPA Experience, 54 Drake L. Rev. 621 (2006)