Coordination of complex mass tort litigation requires a unique set of management skills. Three important components of effective management include (1) development of appropriate resource allocation between and among firms, (2) integrated use of technology in all phases of the defense effort, and (3) application of cost-management strategies to track, control, and project litigation costs.
Fundamentally, networks of law firms in national litigation provide significant opportunities to leverage resources beyond that which is possible in single-case litigation. For example, firms that have experience in core scientific issues may be very effective in cases beyond their region or jurisdiction. Similarly, certain firms may be better suited to assume trial responsibilities for a particular region or type of case. But an important part of overall resource allocation — and in developing an effective overall defense — is a willingness of individual firms to act cooperatively in the context of a particular litigation. We have extensive experience working with clients to develop the right structure to meet the needs of particular litigation.
Appropriate Use of Technology
In today's environment, it is imperative to bring the best possible technology skills to bear on mass tort litigation. Complex litigation frequently involves multiple law firms working in many jurisdictions, a situation fraught with potential for miscommunication and wasteful duplication of effort if communications technology is inadequate or absent. Likewise, these cases typically involve the most difficult and complex discovery and case management of any form of litigation.
Crowell & Moring has expended substantial effort and resources to place itself among the leaders in national law firms who regularly apply technology to the unique needs of national litigation. Among other areas, we have extensive experience in the following:
- Client extranets. We have worked with our clients to develop secured extranet sites designed to permit easy transmittal of case information, draft briefs, document productions, litigation calendars, etc. The use of software such as PDF formatting and other imaging and viewing technology can be a key part of these projects. In some instances, the systems we created were faster than traditional dial-in approaches. These extranets, created on behalf of Caterpillar Inc, UTC, CSX Transportation, and others, allow for a centralized Internet-based repository of all case information. These secured extranets provide online access to all of this information day or night in a format that is as easy to learn and use as some of the most popular web sites. For Caterpillar, we are hosting case information, key documents, and litigation calendars for over 2,000 individual matters. Every member of the litigation team has easy and timely access to these information resources. Each of our extranets, though customizable for each case or client, offers the same core functionality and features, including a document repository, event tracking, and contact management. In some instances, we have developed applications specific to a client's particular requirements.
- Development of DuPont KnowledgeBase. We helped DuPont develop its Knowledgebase (KB), a Lotus Notes-based intranet linking outside law firms and in-house counsel of DuPont. We served on the task force that designed the DuPont KnowledgeBase, and participated as a pilot firm for application of the KnowledgeBase to litigation.
- Case management and communication tools. We have worked with our clients to develop case-specific electronic connection networks designed to permit exchange of case information, draft briefs, document productions, and calendars. The use of software such as PDF formatting and other imaging and viewing technology can be a key part of these projects.
- Online document review. We have overseen a number of massive, online electronic document and privilege review projects. In one case, the company had literally millions of emails subject to discovery, many involving communications with company lawyers. We organized the privilege review entirely online, working with the vendor to develop the software and accomplishing an overwhelming project in a timely and successful fashion.
- Big-case document management. In another product litigation, we are assisting the client in managing over five million documents on a fully electronic system, from which we conduct discovery searches and make all productions in electronic formats.
- Integrating document management with trial technology. In a series of consumer fraud class actions involving a pharmaceutical product, we teamed with our co-defense counsel and FTI to create and utilize an imaged document database to which all defense firms had access for reviewing and analyzing documents produced in litigation across the country. We routinely used technology tools such as TrialDirector® to display pertinent documents in court during motions hearings and in mock trials that we utilized to develop discovery and trial themes.
- In-house "paperless" file management. We have devoted considerable resources to making our in-house operation state of the art, including creating our own 10,000 square foot in-house imaging and "paperless" case management system and implementing the use of document management software on many of the firm's cases.
- Electronic case compilations. In several of our cases, we developed electronic case compilations, either in CD format or online, containing key case pleadings, expert materials, briefs, and the like that our trial counsel regularly use to avoid reinventing the wheel.
Cost Control and Management
We have occasionally undertaken the cost-management role for certain clients in national litigation, typically in collaboration with in-house counsel. We seek (1) to eliminate duplication in the overall defense effort by leveraging resources across a range of firms as described above, (2) to define staffing structure based on the highest and best use of each firm, and (3) to track costs and review staffing — on a nearly real-time basis — in accord with an agreed-upon structure. We have worked closely with our clients to develop systems designed to address the issues.