Rule 11 Pretrial Coordination: Taming Mass Litigation in Texas

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."

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.

In late 2000 a major product manufacturer was a defendant in numerous cases in Texas state courts. At the time the product manufacturer retained V&E, it was facing a daunting schedule of hearings and trial settings scattered throughout the state. Determined to avoid having its client subjected to a runaway hearing and trial schedule - a defendant in other Texas mass tort cases at one point faced over 500 conflicting trial settings in 2001—V&E began the process of obtaining Rule 11 pretrial coordination in each of the administrative regions. The ultimate goal was statewide coordination of the litigation in Texas. The first region coordinated was Region 5, which is comprised of counties in South Texas. The Rule 11 hearing in Region 5, held in December 2000, was a relatively mild affair, and coordination was quickly ordered. That would not be the case in January 2001, when the next Rule 11 hearing was held in Region 2.

V&E anticipated that the Region 2 hearing would be a higher-profile affair than the hearing in Region 5 because Region 2 held the largest concentration of cases, but was still somewhat surprised by the sheer number of plaintiffs’ counsel that appeared to oppose coordination. The Presiding Judge of Region 2 held the hearing in a tiny courtroom in Orange County. When the V&E lawyers arrived, the courtroom was already packed with plaintiffs’ counsel sitting in every available seat, standing in the aisles, and spilling out into the hallway. To say that the defense counsel were outnumbered would be an understatement. V&E partner Knox Nunnally argued first for the defendants, using a PowerPoint presentation to illustrate the benefits of Rule 11 coordination. The opposition from plaintiffs’ counsel - some of the most successful and high-profile plaintiffs’ counsel in the State - was heated. Believing that the sheer number of cases on file and capable of being set for trial in widely-scattered courts on conflicting dates gave them an advantage, plaintiffs clearly did not want Rule 11 coordination. V&E prevailed, however, and the judge ordered coordination in Region 2. The remaining regions followed suit, but none with hearings that were as eventful as the Region 2 hearing. Had the story ended here, this particular Rule 11 coordination probably would have been no different from several past Rule 11 coordinations, with each pretrial judge managing the cases in his own region without true coordination with other pretrial judges. However, V&E did not stop there. Its ultimate goal was statewide coordination of the litigation through Rule 11.3(c), which expressly requires that if more than one pretrial judge is assigned to related cases, either in the same region or in different regions, the pretrial judges "must consult with each other in conducting pretrial proceedings and deciding pretrial matters." This provision has not always been followed in previous Rule 11 litigation.

To start the statewide coordination process, V&E requested that the Rule 11 pretrial judges coordinate depositions of its client’s corporate representatives to protect them from repetitive depositions and consult with each other on this and other issues as required by Rule 11. This motion prompted an order from the pretrial judges for all attorneys in the coordinated cases to appear before the Region 2 pretrial judge to discuss implementing a statewide case management order (the CMO). This statewide hearing set the stage for true coordination of the litigation. First, plaintiffs and defendants met to negotiate a proposed statewide CMO. The parties agreed on many areas, but sharply disagreed on several key issues, including whether existing trial settings would be eliminated and how to address outstanding discovery that overlapped with the proposed master discovery. The pretrial judges resolved the contested matters after consulting among themselves. The final version of the CMO was signed by all the pretrial judges and governs all current and future cases in this litigation coordinated under Rule 11. The master CMO addresses such issues as master discovery, "core" or non-case specific depositions, and a global scheduling order. The CMO also contains a trial certification procedure, which requires that certain key events such as plaintiffs’ and experts’ depositions, rulings on summary judgments and Havner expert challenges, and case-specific discovery be completed before the Rule 11 pretrial judge will certify the case for trial. Trial certification ensures that only cases that are ready for trial will actually proceed to trial, notwithstanding a trial setting. A website created and funded by the defendants allows litigants and judges to view, for example, signed orders, master discovery, a calendar of core depositions applicable to all the cases, and a calendar of trial settings. The master CMO drafted in this Rule 11 litigation is historic: it is the first known occurrence of a single statewide case management order governing all Rule 11 coordinated cases throughout the state.

Rule 11 coordination cannot be ordered by a Presiding Judge sua sponte; either a party or a trial judge of one of the related cases must request coordination. The motion must demonstrate the material questions of fact and law common to the related cases and the reasons that coordination would promote the just and efficient conduct of the litigation. Any party, trial judge, or Rule 11 pretrial judge in the related cases may file a response.

The Presiding Judge must coordinate the cases if the judge determines that the case involves material questions of fact and law common to a case in another court and county and that assignment of a pretrial judge would promote the just and efficient conduct of the cases. In reaching that decision, the Presiding Judge may consider all documents filed and discovery conducted in the related cases, any stipulations or affidavits filed by the parties, and oral testimony. The Presiding Judge must conduct an oral hearing before granting an opposed motion. An order granting or denying appointment of a Rule 11 pretrial judge may be reviewed only by the Texas Supreme Court in an original mandamus proceeding.

The Presiding Judge of a particular administrative region may assign an active district judge, including himself or herself, as a Rule 11 pretrial judge. Although not required by Rule 11, the general practice is to assign one of the trial judges already presiding over one of the related cases to be the Rule 11 pretrial judge.

Once assigned, a pretrial judge will preside over all pretrial proceedings in the case in place of the regular trial judge. The pretrial judge will decide all pretrial motions, including motions to transfer venue and motions for summary judgment, and must consult with the regular judge on setting a trial date. The pretrial judge’s role in setting cases for trial is critical, because the pretrial judge will have a much better sense of how many other cases are already set for trial and will be able to minimize the multiple and conflicting trial settings that have been so problematic in mass litigation.

The efficacy of Rule 11 depends on what the litigants and the judges choose to make of it. Not all Rule 11 litigation is truly "coordinated." It is common in Rule 11 litigation to see only some regions of the state coordinated and to see each pretrial judge implementing his own case management order and ruling on litigation-wide issues without consulting the other pretrial judges. In the recent Rule 11 coordination handled by V&E, the pretrial judges made a real effort to work together to streamline the litigation by routinely consulting on statewide issues. Particularly when used in this manner, Rule 11 offers substantial benefits to the parties and the judiciary and can do much toward resolving mass litigation efficiently.

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