Coordinating Complex Employment Litigation

The retention of a National Coordinating Counsel (“Coordinating Counsel”) assists an employer in coordinating class actions and/or multiple lawsuits across the country. Coordinating Counsel's key role is to determine the basic facts of the cases, to set the basic defense strategy, and to flag sensitive issues for coordinated attention. Among other things, Coordinating Counsel also audits company files for responsive documents, creates databases of those documents to be provided to local counsel for use in individual cases, consults with local counsel regarding production decisions, and tracks production of documents. Coordinating Counsel should also draft form discovery responses and approve variations to the form. Similarly, Coordinating Counsel may evaluate and respond to non-routine discovery. Finally, Coordinating Counsel should, at a minimum, review all significant briefs to ensure consistency across cases. Depending on the case, the employer may elect to have the Coordinating Counsel write all briefs in a given area – ie, class certification. In short, Coordinating Counsel is an effective way to maintain consistency across jurisdictions while avoiding overload of in-house counsel.

Implementing a Litigation Manual

A litigation manual is an effective way to communicate the employer's expectations to local counsel. The litigation manual also is a useful tool in establishing and maintaining communication between local counsel to ensure consistency.

The litigation manual should contain suggested responses to repetitive discovery requests. The employer benefits from the suggested responses by paying only once for the development of responses to repetitive discovery, and the form responses ensure that the employer is taking a consistent stance nationwide. In addition to efficiency and consistency, the employer is assured of accurate responses that it has already approved. The litigation manual can provide outside counsel with a list of the types of documents that exist and documents that should be used in the defense of the case. It should also set out the procedure for verification of discovery responses. Of course, there are situations where it will be necessary to deviate from the form, but this decision must be approved by the employer and/or Coordinating Counsel.

Form offensive discovery included in the litigation manual is useful as a starting point for local counsel. However, as the cases progress, the form offensive discovery should be revised given new information, new legal strategies, and information learned from previous cases. Moreover, when state law claims are involved, different legal issues may require revisions to the suggested offensive discovery.

The litigation manual should also be used to standardize strategic issues such as the employer's response to 30(b)(6) depositions and expert witnesses. For example, the employer may consider having one law firm handle 30(b)(6) depositions for all cases to ensure consistency in the testimony and aid the employer in avoiding impeachment. The employer may consider stipulating to the use of 30(b)(6) depositions in multiple cases to avoid requiring corporate representatives to give multiple depositions, reducing the risk of inconsistent testimony or impeachment. The employer may also list suggested expert witnesses or topics for expert testimony consideration in the litigation manual. Again, by using a smaller group of expert witnesses, the employer is able to maintain consistency while enhancing efficiency in its defense. As with other areas of “standardization,” there should be procedures, including consultation with the Coordinating Counsel, for deviations from the suggested experts.

Utilizing Databases for Coordination

When the employer is attempting to marshal its defense to related cases in many different jurisdictions, it is faced with the task of getting information supporting its case to all local counsel. The most efficient way to get the information to all counsel is through the use of electronic databases.

The core document database should contain policies, procedures, handbooks, and any other documents that would relate to the claims in the lawsuit. For example, in a wage and hour case, the employer would want to compile all documents regarding its payroll policies and practices, its policies on how employees report and record their hours, and any communications to employees regarding pay. By using a core document database, the employer can ensure that all local counsel have access to the basic corporate information to be produced to plaintiffs in the company's defense. This database can also be used to track production of documents, which is especially important when potentially problematic documents have been produced or when plaintiffs' attorneys are exchanging information with each other.

A brief and motion database will also lead to efficiency and consistency. Local counsel can consult this database see how counsel in other states have handled issues, as well as to see which arguments have been successful, and which need reworking. In addition, the employer can avoid paying each local counsel to do the same work, instead refining the work already done, while maintaining a consistent position in all cases.

A database containing orders entered in cases involving the employer can also be useful in strategic planning for other cases. From this, local counsel can see what the employer has been required to produce in other cases, what experts have been excluded, which arguments and battles have been successful, and which need to be reconsidered.

Coordination of expert witnesses can benefit the company. The employer can create an expert witness database for both defendant's and plaintiffs' experts that contains biographical data about the experts, expert reports, hot issues from other cases, and whether any expert has been excluded in other cases. Moreover, the database can contain direct and cross-examination outlines, any past testimony, and any Daubert challenges to admissibility of expert testimony.

A testimony database can be used to track all testimony given by company employees to aid in preparing witnesses to testify and to assist in avoiding inconsistent testimony and impeachment. The database should contain not only deposition testimony, but also affidavits or other written statements, as well as any testimony given during a hearing or trial. In addition to witness preparation, this database is useful for motion and brief writing. This database can also contain testimony of key plaintiff's witnesses.

Finally, the company can use a database to keep track of privileged information and to create a privilege log. Typically, privileged information is removed from the other databases to avoid inadvertent production. A privilege log can be generated and provided to each local counsel. Having one person or team responsible for privileged documents will ensure that the company is consistent in its claim of privilege and will decrease the likelihood of inadvertent production, which can lead to waiver of any privilege in other, unrelated cases.

Although there are numerous efficiencies to be gained in creating databases when dealing with multiple, similar lawsuits, there are risks involved. Generally, courts have protected database information from discovery in most cases. For example, one court held that a database of information prepared by attorneys in anticipation of litigation is subject to the work product privilege, and is protected even if it has been disclosed to another party with common interests. U.S. v. American Telephone & Telegraph Co., 642 F.2d 1285 (D.C. Cir. 1980) (holding that database created by the intervener, and provided to the U.S., was protected by the work product privilege and not discoverable by AT&T). But, this protection is not limitless. In Brazil v. General Motors Corp., C.A. No. 7:99CV-001-X, 1999 U.S. Dist. LEXIS 22694 (N.D. Tex. Sept. 16, 1999), for example, the court held that a database created in 1982 by GM corporate counsel to deal with documents related to a specific type of litigation was no longer protected by work product privilege 17 years later because of the passage of time.

A database that is simply a compilation of facts without attorney thoughts and impressions may not be protected. To avoid this characterization, the employer should consider attorney involvement from the outset, content that is culled by attorneys, a database that is prepared specifically for litigation and is not used for business purposes, and coding that reflects thoughts, mental impressions, and thought processes of attorneys.

Using the Extranet/Intranet

In addition to traditional methods of coordination, the Internet has opened up more possibilities for companies to use in coordinating among its local counsel. Web sites such as www.trial net.com, www.casecentral.com, and www.workspace.findlaw.com offer extranet services allowing companies to interact in a privileged and protected extranet with local counsel and for local counsel to interact with one another. These Web sites provide secure Internet sites that are available only to users designated by the company, which can serve as a virtual filing cabinet allowing all local counsel access to each other's files. The employer should be sure to only allow access to the site by its attorneys to protect the privileged nature of the communications. Allowing experts or other consultants to have access to the site would risk losing the attorney client or work product privilege to information contained on the site. See United States Fidelity & Guaranty Co. v. Braspetro Oil Servs. Co., 97 Civ. 6124 (JGK)(THK), 2002 U.S. Dist. LEXIS 111 (S.D.N.Y. Jan. 7, 2002) (holding that company must produce all documents on privilege log that it shared with expert because disclosing privileged documents to expert waived privilege).

The employer can post pleadings, motions, orders, and other information to the Web site so that the information can be shared among all counsel working on the company's cases. The employer and local counsel can also communicate with each other through message boards on the secure site. As with other coordination techniques, the success of an extranet system depends on compliance of local counsel in using the system. The employer must require that every local counsel keep its information on the extranet up to date and monitor the messages daily.

When an employer is facing multiple lawsuits or class actions in many jurisdictions, its resources can be taxed heavily in trying to defend the lawsuits. Coordination among counsel and between counsel and the company is the key to a successful defense. The hiring of a national Coordinating Counsel combined with creation of databases of information and the use of extranet services give the company the ability to efficiently manage its resources while responding in a clear and consistent fashion to the litigation.

In the past several years, employment class and collective action lawsuits have caught the attention of employees across the country. Many of these cases have resulted in multi-million dollar settlements or verdicts. Merely by way of example, within the first several months of 2004, the court granted approval of a $36.5 million settlement for alleged gender discrimination against United Airlines; the City of New York paid $26.8 million for claims of discrimination by a class of Hispanic police officers; and Longhorn Steakhouse agreed to pay $525,000 to settle a claim brought by the EEOC for alleged sexual harassment of two teenaged employees.

Equally troubling, once an industry or corporation is viewed as potentially vulnerable on an issue, copycat cases may be brought in multiple jurisdictions against the same defendant or against others in the same industry. Likewise, the same plaintiffs' counsel may bring multiple lawsuits against the same company or other companies in the same business or industry. For example, Taco Bell reached a $9 million settlement with some of its California employees based on claims of working off the clock and missed meal breaks. Taco Bell has also faced similar lawsuits in Arizona, Washington and Oregon. Clearly, companies must aggressively defend such class and collective actions. Moreover, proactive companies will want to ensure that they are properly positioned to defend against future class or collective claims. Coordinating large class cases or multi-jurisdictional litigation is challenging and demands unique case management strategies.

Engaging National Coordinating Counsel

The retention of a National Coordinating Counsel (“Coordinating Counsel”) assists an employer in coordinating class actions and/or multiple lawsuits across the country. Coordinating Counsel's key role is to determine the basic facts of the cases, to set the basic defense strategy, and to flag sensitive issues for coordinated attention. Among other things, Coordinating Counsel also audits company files for responsive documents, creates databases of those documents to be provided to local counsel for use in individual cases, consults with local counsel regarding production decisions, and tracks production of documents. Coordinating Counsel should also draft form discovery responses and approve variations to the form. Similarly, Coordinating Counsel may evaluate and respond to non-routine discovery. Finally, Coordinating Counsel should, at a minimum, review all significant briefs to ensure consistency across cases. Depending on the case, the employer may elect to have the Coordinating Counsel write all briefs in a given area – ie, class certification. In short, Coordinating Counsel is an effective way to maintain consistency across jurisdictions while avoiding overload of in-house counsel.

Implementing a Litigation Manual

A litigation manual is an effective way to communicate the employer's expectations to local counsel. The litigation manual also is a useful tool in establishing and maintaining communication between local counsel to ensure consistency.

The litigation manual should contain suggested responses to repetitive discovery requests. The employer benefits from the suggested responses by paying only once for the development of responses to repetitive discovery, and the form responses ensure that the employer is taking a consistent stance nationwide. In addition to efficiency and consistency, the employer is assured of accurate responses that it has already approved. The litigation manual can provide outside counsel with a list of the types of documents that exist and documents that should be used in the defense of the case. It should also set out the procedure for verification of discovery responses. Of course, there are situations where it will be necessary to deviate from the form, but this decision must be approved by the employer and/or Coordinating Counsel.

Form offensive discovery included in the litigation manual is useful as a starting point for local counsel. However, as the cases progress, the form offensive discovery should be revised given new information, new legal strategies, and information learned from previous cases. Moreover, when state law claims are involved, different legal issues may require revisions to the suggested offensive discovery.

The litigation manual should also be used to standardize strategic issues such as the employer's response to 30(b)(6) depositions and expert witnesses. For example, the employer may consider having one law firm handle 30(b)(6) depositions for all cases to ensure consistency in the testimony and aid the employer in avoiding impeachment. The employer may consider stipulating to the use of 30(b)(6) depositions in multiple cases to avoid requiring corporate representatives to give multiple depositions, reducing the risk of inconsistent testimony or impeachment. The employer may also list suggested expert witnesses or topics for expert testimony consideration in the litigation manual. Again, by using a smaller group of expert witnesses, the employer is able to maintain consistency while enhancing efficiency in its defense. As with other areas of “standardization,” there should be procedures, including consultation with the Coordinating Counsel, for deviations from the suggested experts.

Utilizing Databases for Coordination

When the employer is attempting to marshal its defense to related cases in many different jurisdictions, it is faced with the task of getting information supporting its case to all local counsel. The most efficient way to get the information to all counsel is through the use of electronic databases.

The core document database should contain policies, procedures, handbooks, and any other documents that would relate to the claims in the lawsuit. For example, in a wage and hour case, the employer would want to compile all documents regarding its payroll policies and practices, its policies on how employees report and record their hours, and any communications to employees regarding pay. By using a core document database, the employer can ensure that all local counsel have access to the basic corporate information to be produced to plaintiffs in the company's defense. This database can also be used to track production of documents, which is especially important when potentially problematic documents have been produced or when plaintiffs' attorneys are exchanging information with each other.

A brief and motion database will also lead to efficiency and consistency. Local counsel can consult this database see how counsel in other states have handled issues, as well as to see which arguments have been successful, and which need reworking. In addition, the employer can avoid paying each local counsel to do the same work, instead refining the work already done, while maintaining a consistent position in all cases.

A database containing orders entered in cases involving the employer can also be useful in strategic planning for other cases. From this, local counsel can see what the employer has been required to produce in other cases, what experts have been excluded, which arguments and battles have been successful, and which need to be reconsidered.

Coordination of expert witnesses can benefit the company. The employer can create an expert witness database for both defendant's and plaintiffs' experts that contains biographical data about the experts, expert reports, hot issues from other cases, and whether any expert has been excluded in other cases. Moreover, the database can contain direct and cross-examination outlines, any past testimony, and any Daubert challenges to admissibility of expert testimony.

A testimony database can be used to track all testimony given by company employees to aid in preparing witnesses to testify and to assist in avoiding inconsistent testimony and impeachment. The database should contain not only deposition testimony, but also affidavits or other written statements, as well as any testimony given during a hearing or trial. In addition to witness preparation, this database is useful for motion and brief writing. This database can also contain testimony of key plaintiff's witnesses.

Finally, the company can use a database to keep track of privileged information and to create a privilege log. Typically, privileged information is removed from the other databases to avoid inadvertent production. A privilege log can be generated and provided to each local counsel. Having one person or team responsible for privileged documents will ensure that the company is consistent in its claim of privilege and will decrease the likelihood of inadvertent production, which can lead to waiver of any privilege in other, unrelated cases.

Although there are numerous efficiencies to be gained in creating databases when dealing with multiple, similar lawsuits, there are risks involved. Generally, courts have protected database information from discovery in most cases. For example, one court held that a database of information prepared by attorneys in anticipation of litigation is subject to the work product privilege, and is protected even if it has been disclosed to another party with common interests. U.S. v. American Telephone & Telegraph Co., 642 F.2d 1285 (D.C. Cir. 1980) (holding that database created by the intervener, and provided to the U.S., was protected by the work product privilege and not discoverable by AT&T). But, this protection is not limitless. In Brazil v. General Motors Corp., C.A. No. 7:99CV-001-X, 1999 U.S. Dist. LEXIS 22694 (N.D. Tex. Sept. 16, 1999), for example, the court held that a database created in 1982 by GM corporate counsel to deal with documents related to a specific type of litigation was no longer protected by work product privilege 17 years later because of the passage of time.

A database that is simply a compilation of facts without attorney thoughts and impressions may not be protected. To avoid this characterization, the employer should consider attorney involvement from the outset, content that is culled by attorneys, a database that is prepared specifically for litigation and is not used for business purposes, and coding that reflects thoughts, mental impressions, and thought processes of attorneys.

Using the Extranet/Intranet

In addition to traditional methods of coordination, the Internet has opened up more possibilities for companies to use in coordinating among its local counsel. Web sites such as www.trial net.com, www.casecentral.com, and www.workspace.findlaw.com offer extranet services allowing companies to interact in a privileged and protected extranet with local counsel and for local counsel to interact with one another. These Web sites provide secure Internet sites that are available only to users designated by the company, which can serve as a virtual filing cabinet allowing all local counsel access to each other's files. The employer should be sure to only allow access to the site by its attorneys to protect the privileged nature of the communications. Allowing experts or other consultants to have access to the site would risk losing the attorney client or work product privilege to information contained on the site. See United States Fidelity & Guaranty Co. v. Braspetro Oil Servs. Co., 97 Civ. 6124 (JGK)(THK), 2002 U.S. Dist. LEXIS 111 (S.D.N.Y. Jan. 7, 2002) (holding that company must produce all documents on privilege log that it shared with expert because disclosing privileged documents to expert waived privilege).

The employer can post pleadings, motions, orders, and other information to the Web site so that the information can be shared among all counsel working on the company's cases. The employer and local counsel can also communicate with each other through message boards on the secure site. As with other coordination techniques, the success of an extranet system depends on compliance of local counsel in using the system. The employer must require that every local counsel keep its information on the extranet up to date and monitor the messages daily.

When an employer is facing multiple lawsuits or class actions in many jurisdictions, its resources can be taxed heavily in trying to defend the lawsuits. Coordination among counsel and between counsel and the company is the key to a successful defense. The hiring of a national Coordinating Counsel combined with creation of databases of information and the use of extranet services give the company the ability to efficiently manage its resources while responding in a clear and consistent fashion to the litigation.