Trial Magazine

Complex litigation is just that: complex. Multidistrict litigation (MDL) has all kinds of moving parts, and judges may do things differently from one MDL to the next. While the Federal Rules of Civil Procedure (FRCP) do not provide step-by-step instructions, modern MDLs have common traits from which you can identify four elements crucial to MDL discovery.

Before delving into efficient MDL discovery, it’s important to understand some fundamentals. The Judicial Panel on Multidistrict Litigation (JPML) is a panel of seven federal judges that may centralize tens, hundreds, or thousands of civil cases with common questions of fact in one federal district court for pretrial purposes.¹ These cases remain before one federal district court for the entirety of discovery until the cases are ready for trial. Once a case is ready for trial, the default rule is that the case will be remanded to the federal district court in which the case originated.²

The JPML considers many factors in deciding whether to create an MDL, including the potential for collaborative and efficient discovery.³ The JPML also may consider the location of corporate defendants, whether witnesses are geographically close for deposition attendance, and whether the parties could coordinate discovery among different courts if an MDL is not created.⁴

If the JPML decides to centralize the cases, an order is then filed with the transferee court, the federal district court where the cases will be centralized. The transferee judge often schedules an initial status conference to discuss the prospect of selecting lead lawyers and case management. A central topic is usually the scope of discovery, which leads us to the first element of efficient MDL discovery.

First Element: Obtaining Initial Discovery Orders

The initial case management order (CMO) sets expectations and serves as a framework for the MDL process. Subsequent CMOs will address discovery in more detail, including a potential discovery plan. The MDL judge often asks the litigants to propose a discovery plan and then provides guidance on the plan.

For example, in the Xarelto Products Liability Litigation, Judge Eldon Fallon oversaw thousands of cases consolidated in the Eastern District of Louisiana.⁵ Judge Fallon first issued several pretrial orders selecting lead counsel, liaison counsel, and the plaintiffs’ steering committee (PSC), after which he issued several orders affecting discovery and case management.⁶

The first CMO involved several aspects from the initial status conference, including voluntary disclosures and productions by the defendants; the plaintiffs’ master set of requests for production; third-party discovery, plaintiffs’ fact sheets (PFS) and defendants’ fact sheets (DFS); details for a “science day” (when parties educate the judge with an overview of the science and medical literature related to the products at issue); state and federal liaisons; proposed topics for the next CMO; and bundling pleadings and answers.

The litigants then proposed several matters for the second CMO, which ended up setting scheduling and other general parameters involving discovery and bellwether trials. While the Xarelto MDL had several other pertinent pretrial orders and CMOs that added additional context, this thousand-foot view demonstrates how Judge Fallon set initial expectations for nearly every foreseeable turn of that particular MDL.

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Be prepared to discuss discovery-related topics in the initial case management conference, with examples of how past MDLs have handled these matters.

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Plaintiff counsel should be prepared to discuss each of the discovery-related topics in the initial case management conference. Be prepared with examples of how past MDLs have handled these matters, especially if you’re before a judge who is handling their first MDL. If there are MDLs that have had different approaches, make sure to portray an accurate landscape by informing the judge about those various approaches. This will establish that you’re a credible guide for the new MDL judge, especially in these early stages.

Second Element: Discovery Agreements Among the Parties

Discovery agreements may include a protective order⁷; ESI protocol⁸; deposition protocol; and other similar orders, such as Federal Rule of Evidence 502(d) orders relating to clawbacks of privileged documents.⁹ These agreements include stipulations regarding crucial aspects of discovery, from document productions to deposition procedures.

Discovery agreements are worth a good investment of your time and attention. Many lawyers tend to start by using similar protocols from prior litigation as a template, but be cautious of using these as a starting point. Form agreements may include several aspects that were unique to the prior litigation and may not apply in the current one.

For example, a prior MDL that established separate discovery tracks for personal injury claims and class actions would not apply in an MDL that has only personal injury claims. Corporations also have different information sources, like proprietary databases or unique workspace collaboration tools. Don’t assume the information sources addressed in an ESI protocol in a prior MDL cover all the information sources in the new MDL. Form agreements also may be the product of both sides making concessions, which means if you use it as your starting point, you could be starting behind the eight ball.

ESI protocols. ESI protocols, for example, have become increasingly common in MDLs. ESI protocols address several aspects of document production, including the form of production, processing specifications, data preservation, data privacy and security, search methodology, and privilege.

The ESI world is constantly evolving. FRCP 34’s Advisory Committee Notes to its 2006 amendment explained that the definition of ESI will expand over time due to new technological advances.¹⁰ The Advisory Committee was right to make that clarification because since then, we’ve seen the introduction of Dropbox (2008), WhatsApp (2009), Slack (2009), and Snapchat (2011), just to name a few “new” sources of ESI. Snapchat, for instance, has caused some serious e-discovery and legal debates given that the messages are designed to disappear.¹¹ Those debates are far beyond the scope of this article, but they highlight two main things: first, be cautious about using an outdated template ESI protocol, and second, it can be advantageous to consult with e-discovery experts to guide you through ESI protocol negotiations and prepare for potential pitfalls.

Protective orders. Protective orders, also called confidentiality agreements, are common in MDLs.¹² Defendants frequently want protective orders to ensure that their companies’ documents will be used for the current litigation only and will not end up in the hands of competitors. Protective orders often address

• the definition of confidential information (trade secrets, medical information related to non-parties, personal identifiable information, tax records, or employment records)
• procedures for designating information as confidential
• procedures for inadvertent failures to designate information
• redactions
• disclosure of confidential information in depositions
• limits on third-party disclosures
• filing of confidential information
• challenges to designations
• use of such information at trial
• returning or destroying confidential information after the litigation.

Protective orders are usually accompanied by an acknowledgment to be signed by attorneys, service providers, experts, or others working with the confidential information. Judges and the parties may consider the need for protective orders on a case-by-case basis. For example, judges sometimes consider the line between protecting trade secrets and public access to court documents.¹³

Deposition protocols. Deposition protocols address procedures that go beyond the typical parameters of the Federal Rules of Civil Procedure. They may include matters such as

• the number of depositions allowed
• scheduling
• procedures to produce documents in advance of depositions
• location
• individuals who may attend
• duration
• requests for supplemental depositions
• time allocations for each side
• depositions in foreign countries.

MDL courts, such as in the Proton-Pump Inhibitor Products Liability Litigation,¹⁴ had to enter supplemental CMOs for remote depositions in mid-to-late 2020 due to the pandemic.

Remote-deposition considerations in future MDLs, however, likely can be addressed in one comprehensive deposition protocol. Your overarching goal when negotiating a deposition protocol should be to ensure that the defendants are not trying to create too many hurdles that are inconsistent with the FRCP. Be on the lookout for unreasonable deadlines, such as a three-day window in which you can challenge the defendants’ confidentiality designations.

Deposition protocols also can be helpful to the plaintiffs in many ways. For example, plaintiffs may propose a provision that defense witnesses must produce documents in response to document requests a certain number of days before the deposition. This prevents defendants from producing hundreds of pages of documents the night before or on the day of the deposition.

Third Element: Communication and Workflow Within the Committees

We have all seen TV shows and heard of real-life examples where local police officers, FBI agents, and DEA or Homeland Security agents are all working parallel investigations toward solving one crime. They all want to be the first to apprehend the subject and solve the case, but this fragmented approach inevitably leads to a lack of communication. If MDL committees operated in this manner, it would mean duplicative work and underprepared depositions.

Effective PSCs operate like a structured entity. Lead counsel would be the CEO, committees and subcommittees would be departments, and heads of the committees and subcommittees would be department chairpersons. Lead counsel often enter their role with a particular management style or philosophy that will trickle down through the committees. Leadership should ensure that each subcommittee has defined roles and expectations for communicating information that could benefit the leadership and other committees.

First, the leadership will create a defined workflow among the committees. This may occur soon after the judge appoints the PSC. Under the PSC will be various subcommittees, such as a discovery committee, bellwether trial committee, science or expert committee, and law and briefing committee. The lead lawyers typically appoint members of the PSC to head various subcommittees. Under the discovery committee, subgroups are usually responsible for depositions, document review, and science and expert development. Once the PSC determines who will be in each role, it is equally important to define how each subcommittee will work together toward an efficient discovery process.

The discovery committee, for example, likely will have a document review subcommittee responsible for, among other things, deciding on a methodology for analysis and review of documents and ESI, along with the necessary technology platforms, service providers, and procedures to support the selected approach; recruiting or appointing attorneys and legal technology support to carry out early case assessment and review responsibilities; providing the review team with an understanding of the case and training to ensure proficiency in the document review platform; and designing a protocol for classifying documents and capturing attorney work product. This ensures that document review generates worthwhile results to assist with supporting the overall case theories, depositions, experts, and more.

Second, MDL committees must communicate effectively. MDL leadership should bring together the team, set a vision, create a strategy, and implement methods of communication that will operate continuously to move the litigation forward and meet goals. Effective communication methods may include weekly conference calls or roundtable discussions, as well as systems for electronic communications or collaboration platforms.

Committee chairs may choose to set up weekly calls with, for example, the discovery committee. The discovery committee would then hear updates from each subcommittee (document review, depositions, experts). There also may be overlap between committee calls. For example, when someone from the depositions committee is preparing for science-related witnesses, the committee members may join the science or expert committee’s call and consult with them about those topics.

Fourth Element: Efficient Discovery Dispute Resolution

Although CMOs and agreements between the parties may help prevent many potential discovery issues, disagreements are inevitable. Discovery disputes may include arguments over the scope of preservation; failure to preserve; accessibility of ESI; form of production; custodians and information sources; objections to discovery; gaps or deficiencies in production (such as missing date ranges, metadata, custodians, or files); redactions; privilege logs; and more. But there are several ways to help streamline this process.

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The FRCP are designed to help efficiently move discovery—not impede it. Use them as a dispute resolution tool.

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First, discovery committees or lead lawyers tasked with negotiating discovery matters have several tools at their disposal to resolve disputes without court intervention. This sounds like a no-brainer, but the first tool is the FRCP. The rules are designed to help efficiently move discovery—they are not designed to impede it. FRCP 26(f), for instance, has a defined checklist of items to discuss at the onset of the litigation, including a discovery plan, and direction to discuss items such as preservation and production of ESI. Parties should be diligent and thoughtful about the initial discovery plan, rather than just “checking the boxes.”

FRCP 30(b)(6) also recently added a conferral requirement that may help eliminate deposition disputes. The Advisory Committee Notes to the 2020 amendment to FRCP 30(b)(6) provide detailed guidance on the new conferral requirement.¹⁵ Not only does the amended rule direct the serving party and named organization to confer, it also “requires that a subpoena notify a nonparty organization of its duty to confer” and advises parties to candidly exchange information on

• the purposes of the deposition
• the organization’s information structure
• the timing and location of depositions
• the number of witnesses
• the matters on which each witness will testify.¹⁶

Parties also can build conferral requirements into their ESI protocols and protective orders. Groups such as the Sedona Conference produce commentary to help add modern context to the rules and streamline discovery disputes.¹⁷

Parties can also create an internal discovery tracking protocol that logs each discovery issue and tracks efforts to resolve it. Once you reach a resolution with the opposing party, make sure to confirm it in writing. Written confirmations ensure that the other side is on the same page and provide a potential exhibit if needed down the road. Create calendar reminders to follow up until the other side fulfills its commitment to resolve the issue. If motion practice is necessary, the narrower the issues, the better. Judges or special masters will be much more willing to dive into the details to resolve a few discovery issues after seeing your efforts to narrow them down.

However, after litigants meet their FRCP 37 conferral requirements and make a good-faith effort to negotiate and obtain discovery or resolve disagreements cooperatively, there still may be genuine discovery disputes that require court intervention. For example, the parties may be unable to resolve a disagreement about whether discovery directed at particular custodians is proportionate to the needs of the case. Or they may be unable to come to terms on certain objections relating to scope and breadth of discovery requests. This is where alternative dispute resolution methods can come into play. In an MDL, a motion to compel, for example, may be handled differently by the court than it would be in a single-event case. MDL judges often call on magistrate judges¹⁸ or special masters¹⁹ for assistance in discovery disputes. Both are viable options to narrowly tailor and efficiently manage MDL discovery.

While FRCP 53 permits the court to appoint special masters for various reasons, our discussion is limited to discovery. Special discovery masters serve a specialized role and can help to avoid discovery problems, by, for example, assisting with finalizing ESI protocols, facilitating conferrals, and resolving privilege challenges. They also may require the parties to submit joint letter briefing stating the issues and each parties’ respective position. Special discovery masters also may provide recommendations to the court, as well as monitor or ensure compliance with court orders.

Special discovery masters are typically retired judges or law professors who have significant experience in e-discovery. The appointment of a special discovery master versus a magistrate judge to hear discovery disputes should be a case-by-case decision based on what will best serve the needs of each MDL. Many factors, including the caseload of the magistrate judge, the expense, and timing issues should be considered.

Many judges, lawyers, and commentators constantly reexamine the inner workings and procedures of MDLs.²⁰ Currently, the FRCP are, for the most part, silent on the subject. This allows MDL judges considerable discretion to use past methods or create new ways to handle consolidated litigations. However, proposed amendments to the FRCP would impact MDLs. While MDL procedures may differ from case to case, the common elements discussed here allow you to think ahead toward an efficient discovery process.

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Ryan Duplechin is a principal and Suzanne Clark is discovery counsel at Beasley Allen Law Firm in Montgomery, Ala. They can be reached at ryan.duplechin@beasleyallen.com and suzanne.clark@beasleyallen.com.

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Notes

1. 28 U.S.C. §1407.
2. See id.
3. See David F. Herr, Multidistrict Litigation Manual §5:6 (2022).
4. See, e.g., In re Taxotere (Docetaxel) Eye Injury Prods. Liab. Litig., 584 F. Supp. 3d 1378, 1379 (J.P.M.L. 2022) (Although there were only 13 cases filed at the time, the JPML considered whether informal discovery coordination would be feasible considering the growing nature of the litigation.).
5. In re Xarelto (Rivaroxaban) Prods. Liab. Litig., 65 F. Supp. 3d 1402, 1405–06 (J.P.M.L. 2014).
6. Judge Fallon’s Case Management Orders are available at U.S. Dist. Court E. Dist. La., MDL - 2592 Xarelto Products Liability Litigation, https://www.laed.uscourts.gov/xarelto.
7. Fed. R. Civ. P. 26(c).
8. For more on ESI protocols, see Ariana J. Tadler & Brian R. Morrison, A Framework for ESI Protocols, Trial, June 2020, at 36.
9. Fed. R. Evid. 502(d). For more on clawback orders, see Amy Keller, Hidden in Plain Sight, Trial, July 2023, at 20.
10. Fed. R. Civ. P. 34.
11. See, e.g., Sam Skolnik, Vanishing Messages Muddle E-Discovery for Attorneys, Judges, Bloomberg Law, Nov. 22, 2019, https://news.bloomberglaw.com/us-law-week/vanishing-messages-muddle-e-discovery-for-attorneys-judges.
12. For more on protective orders in products liability cases, see Karla Gilbride & Jared M. Placitella, Overcoming Secrecy, Trial, Nov. 2022, at 18.
13. For more, see id.; see also Hannah Brennan, The Right of Access, Trial, July 2021, at 30.
14. See, e.g., Case Management Order No. 40 (Regarding Remote Dispositions), In re Proton-Pump Inhibitor Prods. Liab. Litig., MDL No. 2789 (D.N.J. 2020).
15. Committee Notes on Rules—2020 Amendment to Fed. R. Civ. P. 30(b)(6).
16. Id.
17. See, e.g., Sedona Conf., The Sedona Principles, Third Edition: Best Practices, Recommendations and Principles for Addressing Electronic Document Production, 19 Sedona Conf. J. 1, 58 (2018); Steven S. Gensler, A Bull’s-Eye View of Cooperation in Discovery, 10 Sedona Conf. J. 363, 370 (2009).
18. Fed. R. Civ. P. 72.
19. Fed. R. Civ. P. 53.
20. See, e.g., Elizabeth Chamblee Burch, Judging Multidistrict Litigation, 90 N.Y.U. L. Rev. 71, 72 (2015).