by Sandra Rodriguez
Mass litigation, particularly in the area of products liability, poses unique challenges for defendants. A defendant at the center of mass litigation may quickly find itself facing duplicate demands for discovery and depositions and conflicting hearing and trial schedules. Additionally, with many cases involving similar issues of fact and law, counsel may find themselves having to argue the same issues repeatedly before many different courts. The potential for conflicting rulings is real.
The federal court system addresses these problems by allowing the Judicial Panel on Multidistrict Litigation to order similar cases transferred to a single federal judge and consolidated for pretrial purposes. In our Texas state court system, Rule 11 of the Texas Rules of Judicial Administration, adopted in 1997 by the Texas Supreme Court, allows the Presiding Judge in each of the nine Administrative Judicial Regions to appoint one or more active district judges to conduct all pretrial proceedings and decide all pretrial matters for cases in the region involving common questions of fact and law. To assign a pretrial judge, the Presiding Judge must find that the appointment "would promote the just and efficient conduct of the cases."
1. The Benefits of Rule 11 Pretrial Coordination
Having a single pretrial judge hear all pretrial matters in cases with common issues promotes judicial efficiency. In mass litigation, the same issues are likely to recur, including venue, joinder and severance, scope and sequencing of discovery, applicability of trade secret and other privileges, document production, corporate representative depositions, motions for summary judgment, trial consolidation, and trial scheduling. Management by one pretrial judge familiar with the issues will conserve judicial resources, promote consistency, and prevent conflicting rulings and trial settings. Pretrial coordination also makes efficient use of the parties' resources by eliminating duplicative briefing and argument before different courts on the same issues. Without Rule 11 coordination, it is likely that plaintiffs' counsel will file cases in their favorite forums, and obtain early trial settings and harsh discovery orders. Rule 11 coordination can bring order to chaos, allow for more consistent and efficient discovery, and generally allow for management of the litigation.
2. An Example of Successful Rule 11 Pretrial Coordination
In late 2000 a major product manufacturer was a defendant in numerous cases...