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The increase in major litigation in multiple forums, notably in products liability and toxic torts actions but not limited to these cases, has led more clients to use national coordination counsel in defending such litigation. The reasons for doing so are to provide consistent and effective representation across jurisdictional lines and reduce costs. Coordination counsel may assist the client in accomplishing these aims in all phases of litigation, including: developing and drawing on networks of local counsel, consultants, document management services and court reporters; developing and implementing case management strategy, legal analysis and dispositive motions; conducting factual investigation; taking discovery of adversaries and third parties; responding to written discovery and representing company witnesses at depositions; developing experts and preparing to challenge the work of adverse experts; trial preparation and trials; and appeals. Coordination counsel may also assist in maintaining consistency between positions taken in litigation and in the client’s dealings with legislative and other governmental bodies, the press, and the public. This article will discuss in more detail three illustrative examples of the role of coordination counsel: challenging plaintiffs’ choice of forum, developing and implementing motion and case management strategy, and responding to plaintiffs’ discovery. CHALLENGING INITIAL FORUM In recent years huge verdicts have been awarded against major national corporations in highly publicized cases in a number of places around the country. The plaintiffs’ bar has sought out jurisdictions with reputations for being sympathetic to plaintiffs. In many cases, plaintiffs have chosen to bring suit in state courts, often in rural areas. Defendants’ ability to alter plaintiffs’ initial choice of forum may be the most critical step in high stakes litigation. Coordination counsel can play an important role in bringing expertise to removal of cases to federal court, seeking transfer of cases to a multidistrict proceeding or pursuing other means to effect a change of forum. Centralizing responsibility for such matters should increase the chances of success and reduce costs because the legal and factual issues often are recurring and frequently involve technical doctrines with which many practitioners may be unfamiliar. The following are some examples of removal theories that have been used in multiple litigations where a coordinated effort has benefited the client. First, there has been extensive litigation in recent years over the removal of cases based on allegations that plaintiffs “fraudulently joined” non-diverse defendants. In addition to fraudulent pleading of jurisdictional facts, cases have addressed whether the citizenship of a non-diverse entity can be ignored because the plaintiff has no cause of action against that entity or because the plaintiff does not intend to pursue that defendant to judgment. Many courts have chosen to decide these issues on a record, rather than limiting themselves to the face of the complaint or the removal petition. Some courts have authorized substantial post-removal discovery of the plaintiff or the non-diverse defendant to provide a basis for adjudicating the allegations of “fraudulent joinder.” Creating a protocol for systematically assessing in each case whether “fraudulent joinder” arguments are available and pursuing those arguments using a centralized body of expertise developed in litigating remand motions is likely to maximize the chances of successful removal and avoid costly duplication. Second, removal may be available based on federal question jurisdiction in an action where the complaint alleges only state law claims. Even though state law creates the plaintiff’s causes of action, its case might still “arise under” the laws of the United States if a well-pleaded complaint established that its right to relief under state law requires resolution of a substantial question of federal law. See, e.g., City of Chicago v. International College of Surgeons, 522 U.S. 156, 164 (1997); Marcus v. AT&T Corp., 138 F.3d 46, 55-56 (2d Cir. 1998) (affirming removal of state-law breach of warranty claim because it required interpretation of AT&T’s federal tariff); Schaeffer v. Cavallero, 29 F.Supp.2d 184, 185-86 (S.D.N.Y. 1998) (state law claims involving plaintiff’s wrongful ejection from an airplane presented a “substantial federal question” because federal statutes permit airlines to refuse to transport passengers based on legitimate safety concerns). Removal on this ground requires close analysis of the pleadings and the law to identify a necessary and substantial federal question that is unlikely to be obvious from the face of the complaint. Centralizing responsibility for this analysis and developing expertise in litigating the issues is necessary to identify any federal issues that may provide a basis for removal and to do so within the 30-day statutory time limit for removal, 28 U.S.C. �1446. Third, private parties may be able to rely on federal agent removal jurisdiction under 28 U.S.C. �1442(a)(1). A defendant may remove the action under this statute if (i) it acted under the direction of a federal officer or agency, (ii) it has a colorable federal defense to plaintiffs’ claims, and (iii) there is a causal nexus between the federal direction and the conduct in question. Jefferson County v. Acker, 527 U.S. 423, 430-31 (1999); Mesa v. California, 489 U.S. 121, 124-29 (1989); In Re: Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, MDL No. 1358 (SAS), 2004 WL 515535 (S.D.N.Y. March 16, 2004). A number of cases have upheld removals by corporate federal contractors who produced products in accordance with governmental specifications. Crocker v. Borden, Inc., 852 F.Supp. 1322, 1325-27 (E.D. La. 1994); Pack v. AC & S, Inc., 838 F.Supp. 1099, 1102-03 (D. Md. 1993); Fung v. Abex Corp., 816 F.Supp. 569, 571-73 (N.D. Cal. 1992). However, removal under �1442 is not limited to defendants who assert a government contractor defense. See In Re: Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, MDL No. 1358 (SAS), 2004 WL 515535 (S.D.N.Y. March 16, 2004) (upholding removal based on allegations that compound was added to gasoline at direction of federal Environmental Protection Agency); Gurda Farms, Inc. v. Monroe County Legal Assistance Corp., 358 F.Supp. 841 (S.D.N.Y. 1973) (legal aid lawyers acted under the direction of a federal officer where the lawyers were attempting to provide legal assistance to migrant workers pursuant to a statute authorizing such assistance; defendants were “governed by exceedingly complex regulations, guidelines, and evaluation schemes”); State of Oregon v. Cameron, 290 F.Supp. 36, 37 (D. Oregon 1968) (defendants acted under the direction of a federal officer where defendants were rendering medical assistance contemplated by a federal statute and defendants’ activities were subject to the control of state officials). Success in removing cases on this ground requires both familiarity with the relevant law and detailed understanding of the client’s business necessary to make the showings of federal direction and causal nexus. The foregoing only scratches the surface of possible removal theories. Removal might also be available because federal law preempts the field, the action is related to a bankruptcy proceeding, a third-party claim is asserted against a federally chartered institution which has a statutory right to remove the action or on a number of other grounds. In all of these cases, careful analysis of the complaint’s allegations, thorough knowledge of the law, and creative, vigorous advocacy is necessary. Investing in development of expertise by coordination counsel can be the most cost-effective way for a client to maximize its chances to obtain a forum more favorable than the one the plaintiff has chosen. DEVELOPING STRATEGY Coordination counsel can also play an important role in developing and implementing an integrated and consistent motion and case management strategy. Early, aggressive use of dispositive motions is an important tool that has been used successfully in defeating and deterring multiple cases. But, like any other tool, motions do not exist in a vacuum. They must be evaluated and used strategically as part of the overall plan developed at the outset of the case looking to the ultimate end game. Early dispositive motions can accomplish several goals. The most favorable result, of course, is early dismissal of the entire case with an opinion that can be used to eliminate other existing cases or deter the filing of additional cases. But there may be important benefits of dispositive motions short of complete dismissal. First, the motion may significantly pare back the scope of plaintiffs’ legal theories or damages claims. Second, motions may help educate the court at a stage when its only source of information is the complaint’s allegations of defendants’ wrongful conduct and plaintiffs’ injuries. Third, vigorous motion practice may achieve a reversal of the usual roles of aggressive plaintiffs and reactive defendants. Fourth, by forcing plaintiffs to take positions in briefs or argument on early motions, defendants may be able to identify existing vulnerabilities of plaintiffs or create new ones that can be pursued in discovery, settlement negotiations and other proceedings. Fifth, initial dispositive motions may provide the legal or factual foundations for subsequent motions, such as summary judgment motions after discovery, Daubert motions and in limine motions on matters that came to light as a result of the prior motions. The decisions whether to file dispositive motions and, if so, whether to do so at the outset of a case or after discovery and which motions to pursue are not cut and dried. These are judgment calls that should take a number of factors into account and may require considerable preparatory work. First, knowing who the actual (and potential) plaintiffs and their counsel are and what they are after is vital in deciding how best to deflect or channel existing claims and deter future ones. Second, careful scrutiny of the particular claims in a complaint and thorough knowledge of the legal weaknesses and strengths of the claims are key in making informed decisions about motions. Third, the identity of the judge and knowing how he or she has treated motions and other aspects of a major litigation in the past may be decisive. But it is at least as important to gather whatever information may be available and conduct a searching inquiry to assess how the judge likely would handle a case of a scope or kind that may be outside the court’s prior experience. Fourth, counsel should evaluate what alternative tools exist to deflect and deter plaintiffs’ claims. One possibility is a proactive motion for a case management order, such as a motion for a Lone Pine order requiring plaintiffs to produce evidence of the defendant’s product in a particular property or of individual exposure to the defendant’s product as the first step in the case. In deciding on a motion strategy, it is important that the strategy be consistent with the defendant’s ability to advocate a favorable case management plan that will make sense to the court. For example, the defendant may advocate that the most efficient use of the court’s and the parties’ time and resources is to litigate dispositive motions first while staying all discovery and other activity. The timing and content of any dispositive motions may be quite different, however, if the defendant concludes it should advocate a management plan that separates class action and merits proceedings on the assumption the case will not be pursued if class certification is denied. Similarly, the role of dispositive motions may again be quite different if the defendant concludes that it should advocate bifurcating a trial so that the issue most favorable to the defendant, perhaps causation or the statute of limitations, is tried first. In all of these cases, careful attention must be paid to ensuring that articulation of a management plan can be done persuasively and consistently without foreclosing motions or other viable options. Coordination is vital in developing a strategy and adhering to it in defending a large number of cases in multiple jurisdictions over what may turn out to be a period of years. Otherwise, short-term perspectives, time pressure, habits and a multitude of other factors are likely to result in fragmentation, inconsistency, duplication of effort, and a business as usual approach that may not be in the client’s best interest. RESPONDING TO DISCOVERY A client sued in numerous cases in multiple jurisdictions is likely to be faced with voluminous written interrogatories, document requests and requests for admissions. Many of these discovery requests will be identical or very similar. However, there may also be important substantive differences, some of which may be subtle. Drafting written responses, locating sources of information needed to answer interrogatories and requests for admissions, and producing documents can be time-consuming and expensive. There also may be substantial risk in responding to voluminous written discovery if, for example, an admission is made that is not accurate or a responsive document is produced in one case but not in another. Plaintiffs counsel, who frequently work together, can be expected to take advantage of the situation by making substantive use of the admission or document and may characterize an error or inconsistency as concealment or evasion. Assigning coordination counsel responsibility for responses to written discovery and for working closely with the client on document and witness matters can reduce the risk of insufficient or inconsistent responses and document production, avoid costly duplication of effort, and achieve other efficiencies. Coordination counsel who are familiar with the client’s business and documents and known by the relevant company personnel will be better able to prepare accurate responses that are consistent with the company’s overall strategy and concerns than if responsibility is decentralized. Coordination counsel also will be in a better position to understand, formulate and defend objections to discovery that would be unduly burdensome or put the client’s trade secrets and other confidential information at risk of disclosure. Coordination also is important in handling depositions of company witnesses. The possibility of numerous depositions in multiple cases in several jurisdictions presents several risks. Witnesses who are not thoroughly prepared may give testimony that will constitute an admission even though it reflects a misunderstanding or imprecise expression. Depositions of different company witnesses or repeated depositions of the same witness in multiple cases may result in inconsistent testimony that will be used against the client. Moreover, there will be inefficiency, frustration and possibly business disruption if key company personnel are repeatedly subjected to depositions by different plaintiffs’ counsel. Coordination counsel who are familiar with plaintiffs’ counsel, the recurring issues in the cases, and the lines of questions that have been used should be in a better position to prepare and represent the witnesses than counsel who has a more limited involvement in a particular case or jurisdiction. Having the same counsel represent witnesses who are deposed multiple times may create a rapport that makes the deposition process smoother and the witness more comfortable. Coordination counsel may also be able to work with multiple plaintiffs’ counsel to notice and schedule depositions to limit the number of times a witness has to testify and reduce inconvenience. Depositions under Fed. R. Civ. P. 30(b)(6) or state law equivalents present additional challenges that require a coordinated response in multiple litigations. Rule 30(b)(6) deposition notices frequently demand that a company designate a witness or witnesses to testify on its behalf concerning numerous broad subjects. Frequently, these subjects are of dubious relevance, are described in vague or argumentative terms or are directed to litigation contentions and anticipated trial proof. Coordination counsel can be helpful in negotiating limitations and clarifications of the notice and, where necessary, litigating motions for protective orders that are consistent from case to case. Rule 30(b)(6) deposition notices in major litigations sometimes also seek testimony on historical matters as to which no current employee has personal knowledge. Nonetheless, some courts have said that a company must designate a witness to testify on “matters known or reasonably available to the organization.” This has been interpreted to require that the designee be prepared on those issues through documents the witness has never seen, conversations with former employees or third parties, and whatever other sources of information might exist. If the preparation and testimony are later deemed inadequate, sanctions may be imposed, including an order precluding the party from offering evidence at trial on the subject. In such circumstances, there are clear benefits to a single counsel being responsible for the difficult tasks of identifying the appropriate designee, determining what materials are available and should be used in the preparation, and working with the designee to assure adequate preparation and testimony that is consistent with the unusual role the witness is called to play. William H. Voth is a partner in the New York office of Arnold & Porter.

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