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Judicial Management of the Pretrial Process in Massive Litigation: Special Masters as Case Managers

Published online by Cambridge University Press:  20 November 2018

Geoffrey C. Hazard Jr.  and
Paul R. Rice
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Abstract

This article reports on the experience of Special Masters appointed to regulate pretrial phases of a large civil antitrust suit. It describes techniques for expediting discovery, determining claims of privilege in production of documents, establishing stipulations of undisputed facts, and controlling and resolving disputes arising in discovery. It suggests a “managerial” approach to pretrial that is flexible and experimental and that may be useful in controlling the pretrial phase of other “big” cases.

Type
Research Article
Information
American Bar Foundation Research Journal , Volume 7 , Issue 2 , Spring 1982 , pp. 377 - 418
Copyright
Copyright © American Bar Foundation, 1982 

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References

1 Report to the President and the Attorney General of the National Commision for the Review of Antitrust Laws and Procedures, reprinted in 80 F.R.D. 509 (1979). Hereinafter this commission is referred to as “the Commission.”.Google Scholar

2 Handbook of Recommended Procedures for the Trial of Protracted Cases, reprinted in 25 F.R.D. 351 (1960) [hereinafter cited as Handbook]; The Judicial Conference of the United States, the Report on Procedure in Anti-trust and Other Protracted Cases, reprinted in 13 F.R.D. 62 (1951) [hereinafter cited as Prettyman Report]; Manual for Complex Litigation, 1 pt. 2 Moore's Federal Practice (2d ed. New York: Matthew Bender, 1981) [hereinafter cited as Manual].Google Scholar

3 See note 1, supra, at 4.Google Scholar

4 Supra note 2.Google Scholar

5 Supra note 2.Google Scholar

6 Supra note 2.Google Scholar

7 We believe that the observations of the Commission were the most perceptive and that its proposals generally would be most consistent with our views on the management of complex litigation.Google Scholar

8 Judicial reluctance to manage and control discovery has been the rule rather than the exception. The federal rules offered no encouragement for active judicial participation until the 1980 amendments. See note 30 infra. Other factors contributing to judicial hesitance to use management procedures include the lack of time required and the experience necessary to be good case managers, the fear that activism will destroy impartiality, and not wanting to be involved with discovery matters. See Brazil, Wayne D., Improving Judicial Controls Over the Pretrial Development of Civil Actions: Modern Rules for Case Management and Sanctions, 1981 A.B.F. Res. J. 873, 885–87.Google Scholar

9 Civil Action No. 74–1698 (D.D.C., filed Nov. 20, 1974) [hereinafter cited as United States v. AT&T].Google Scholar

10 Civil Action No. 78–0545 (D.D.C., filed Mar. 12, 1978).Google Scholar

11 M.D.L. Docket No. 328, Misc. 78–0145, All Cases, D.D.C.Google Scholar

12 See appendix 1.Google Scholar

13 15 U.S.C. § 2, at the time the Complaint was issued, stated:. Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding fifty thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court. This section was amended in Dec. 1974, by Pub. L. No. 93–528, § 3, 88 Stat. 1708. Any violation is now a felony and the penalty is a fine not exceeding one million dollars if a corporation or, if any other person, $100,000, or imprisonment not exceeding three years, or both punishments.Google Scholar

14 Procedures in which documents more than 10 years old are considered prima facie inadmissible or for which the period of proof is limited, are parallel means of constricting discovery in protracted cases. Proceedings of the Seminar on Protracted Cases for United States Circuit and District Judges, in 21 F.R.D. 395, 433, 480 (1957) [hereinafter cited as Seminar on Protracted Cases]; Handbook, supra note 2, at 405; Prettyman Report, supra note 2, at 73. This technique was inappropriate as a control mechanism, however, in light of the unique nature of this case.Google Scholar

15 Civil Action No. 17–49 (D.N.J. 1956).CrossRefGoogle Scholar

16 The Administrative Office of the United States Courts supplied statistics to the National Commission for the Review of Antitrust Laws and Procedure (see note 1 supra) as to the average number of days from filing to disposition of big cases (defined as trials lasting 10 days or more) in the years 1976, 1977, and 1978. In antitrust suits, the figures were 1,463, 1,086, and 1,443 days respectively (an average of 44 months); in all other actions the figures were 1,194, 1,164, and 994 days (an average of 37 months). A comparison of these figures with the data from the A T&T case dramatically demonstrates the relative speed of the pretrial. It is important to note that this action was tried to the presiding judge, not to a jury. There is no right to a jury trial in a suit for injunctive relief in a civil antitrust action whether brought by the United States or by any person. See Moore, James W. et al., Federal Practice § 1 38.37[2] (2d ed. New York: Matthew Bender, 1981); Charles Wright & Arthur Miller, 9 Federal Practice and Procedure §§ 2308–09 at 41–47 (St. Paul, Minn.: West Publishing Co., 1971). The impact this had on the speed with which the action was tried cannot be precisely evaluated. It is obvious to us, however, that the presence of a jury would have significantly prolonged the trial. The process of educating laymen, as opposed to a judge experienced in dealing with the kinds of technicalities involved in telecommunications, and knowledge about the regulatory context from which the action arose, would have taken considerably more time. More importantly, evidentiary disputes would have been significantly increased due to the disproportionate impact that certain evidence could have had on lay finders of fact. The complexity of the issues in antitrust cases, the length of the trials, and the extensive legal instructions combined with a jury selection system that tends to exclude those veniremen most capable of understanding the trial have raised the question of whether jury trials should be eliminated in antitrust cases. To determine which actions are included in the Seventh Amendment's right to a jury trial “in suits in common law,” courts have used a historical approach. Application of this test does confer the right to a jury trial in an antitrust cause of action. A “complexity exception” that would give courts the discretion to deny a litigant a jury trial on an issue thought to be beyond the competence of the jury has been proposed. This suggestion finds support in a Supreme Court footnote that said that the practical abilities and limitations of the jury was a factor to be considered when analyzing whether the right to a jury trial attaches to a particular cause of action. Ross v. Bernhard, 396 US. 531, 538, n. 10 (1970). The “complexity exception” is generally rejected and some courts have gone so far as to rule that no “case is so overwhelmingly complex that it is beyond the ab of a jury.” See, e.g., In re U.S. Fin. Sec. Liti., 609 F.2d 411, 432 (9th Cir. 1979). Assuming the absence of a “complexity exception,” a constitutional conflict still exists in complex and protracted litigation between the Seventh Amendment right to a jury trial and the Fifth Amendment right to due process; a lengthy trial presented to a jury incapable of deciding the issues may be violative of due process by denying a fair and competent fact-finder. Several suggestions have been made to resolve this conflict. One commentator has suggested that antitrust cases be bifurcated. Judges would try economic market structure issues while juries continued to hear questions of conduct and damages. This system would maintain the historic and traditional role juries have played in American jurisprudence. An alternate suggestion involves modifying the jury selection system through the use of special juries. This would involve an altered jury selection procedure in which qualification would be linked with educational background. A final suggestion that totally abandons the use of the jury calls for the use of an expert nonjury tribunal. Adjudication in such an administrative forum has been found to be consistent with the Seventh Amendment where public rights are being litigated. Elimination of jury trials would have the ancillary effect of shortening trial time. Statistics supplied by the Administrative Office of the United States Courts to the National Commission for the Review of Antitrust Laws and Procedures show that antitrust cases tried to a judge took 56 percent (in 1976), 85 percent (in 1977), and 34 percent (in 1978) of the time of cases tried to juries. A negligible time differential was evidenced in other cases. For a detailed discussion of these issues, see Jorde, Thomas M., The Seventh Amendment Right to Jury Trial of Antitrust Issues, 69 Calif. L. Rev. 1 (1981);Luneburg, William V. & Nordenberg, Mark A., Specially Qualified Juries and Expert Nonjury Tribunals: Alternatives for Coping with the Complexities of Modern Civil Litigation, 67 Va. L. Rev. 887 (1981);Comment, Has the Right to a Jury Trial as Guaranteed Under the Seventh Amendment Become Outdated in Complex Civil Litigation?, 8 Pepperdine L. Rev. 189 (1980). The use of a special antitrust court and the use of a roster of “antitrust” judges to hear complex cases have been proposed as alternative ways of coping with the unique needs of such cases. These alternatives have been rejected because they present a potential for judicial bias and elitism and for fear that more complex problems would result if these hand-picked judges were unable to manage the case. Blecher, Maxwell M. & Carlo, Candace E., Toward More Effective Handling of Complex Antitrust Cases, 1980 Utah L. Rev. 727; Seminar on Protracted Cases, supra note 14, at 437; Com- mission, supra note 1. To assist a jury's understanding of a complex case, the use of multiple witness testimony has been explored. This involves the presentation of testimony by two or more witnesses on the stand simultaneously and testifying alternatively. This innovative approach would enable simple, logical, and coherent presentation of the evidence. By preventing repetition of evidence, the cost and time of the case should be significantly decreased. This format for presenting testimony might have limited use but could be beneficial in cases where there is sequential testimony or little conflict as to the facts. See Paul Nejelski & Kathy Shuart, Is Multiple Witness Testimony Worth a Try?, 7 Litigation 3 (Wntr. 1981). Other ways of helping the jury which have more universal application include instructing the jury on legal issues at the beginning of the trial and refreshing them periodically throughout the trial, allowing miniarguments by counsel at critical stages during the proceeding, allowing the jurors to take notes and ask questions, and increasing the use of visual aids. Blecher & Carlo supra; Commission, supra note 1.Google Scholar

17 One factor accounting for the resistance to the appointment of special masters is that attorneys are concerned about who will be assigned to the case. Seminar on Protracted Cases, supra note 13, at 395. Whenever possible, therefore, the parties should propose and agree on the special master to be involved. Handbook, supra note 2.Google Scholar

18 Many commentators fear that the use of masters constitutes an abdication of a judicial function inconsistent with the constitutional mandate that judicial power be vested with judges. Although the court cannot be relieved of its primary judicial function, it appears that no constitutional barriers prevent the use of masters in limited circumstances. The prudent appointment of masters in exceptional circumstances is generally approved. In large and complex cases, masters can effectively be utilized to supervise discovery, perform mechanical functions or resolve esoteric issues. When an appointment is made, the need for close contact between the judge and master is emphasized. Note, Masters and Magistrates in the Federal Courts, 88 Harv. L. Rev. 779 (1975);Kaufman, Irving R., Masters in the Federal Courts: Rule 53, 58 Colum. L. Rev. 452 (1958); Handbook, supra note 2, at 418; Janofsky, Leonard S., The “Big Case”: A “Big Burden” on Our Courts, 66 A.B.A.J. 848 (1980). The Commission, however, does not recommend the use of masters or magistrates to supervise the pretrial stages of complex antitrust litigation. Commission, supra note 1, at 8. See Seminar on Protracted Cases, supra note 14, at 422. For a discussion of the changing role of special masters and the specialized service they provide in institutional cases, see Brakel, Samuel Jan, Special Masters in Institutional Litigation, 1979 A.B.F. Res. J. 543 (1979);Aronow, Geoffrey F., The Special Master in School Desegregation Cases: The Evolution of Roles in the Reformation of Public Institutions Through Litigation, 7 Hastings Const. L. Q. 739 (1980).Google Scholar

19 We say that because we believe some judges are indeed intimidated by big or controversial cases, a frame of mind that is ill suited to such matters.Google Scholar

20 The proposition that a complex case should be handled by a single judge from the moment it is identified as a “big case” is supported by all of the major studies on judicial management. See notes 1 and 2 supra; Seminar on Protracted Cases, supra note 14, at 413, 420, 444, 447, 477 (1957).Google Scholar

21 We cannot emphasize sufficiently the importance of “flexibility” as “the key to pretrial planning.”Peckham, Robert F., The Federal Judge as a Case Manager: The New Role in Guiding a Case from Filing to Disposition, 69 Calif. L. Rev. 770 (1981). Lack of flexibility can ultimately hinder resolution of the controversy, the very end achievement the case management techniques seek to expedite. Cf. Commission, supra note 1.Google Scholar

22 See appendix 2.Google Scholar

23 See appendixes 2 and 3.Google Scholar

24 See appendix 3.Google Scholar

25 See appendix 4.Google Scholar

26 See appendix 5.Google Scholar

27 See appendix 6.Google Scholar

28 See appendix 7.Google Scholar

29 See note 51 infra.Google Scholar

30 The concern that judicial intervention is a threat to a judge's impartiality, along with the traditional concept that a judge should play a passive role in the adversary process and not spend her time in case management, are accepted notions that sustain resistance to active judicial management. William W. Schwarzer, Managing Civil Litigation: The Trial Judge's Role, 61 Judicature 400, 403 (1978). The use of masters as middlemen is a practical alternative available to deal with this potential threat.Google Scholar

31 Wayne D. Brazil conducted a study based on data gathered during interviews with 180 litigators aimed at yielding attitudes regarding the use and abuse of the discovery system, the success of the system, and recommendations for improving the system. Sixty percent of the attorneys questioned in the Brazil study identified evasive responses, withholding information, and noncompliance with discovery requests as abuses of the discovery process. Antitrust attorneys estimated such abuses were present in 76 percent of their cases; large case lawyers offered estimates of 80 percent. Overdiscovery was considered a problem by 49 percent of the total sample: antitrust attorneys found this abuse present in 59 percent of their cases, and large case litigators found it a problem in 62 percent of their cases. In general, discovery was impeded by dilatoriness in 50 percent of all cases. Brazil, Wayne D., Civil Discovery: Lawyers' Views of Its Effectiveness, Its Principal Problems and Abuses, 1980A.B.F. Res. J. 787, 831–37 [hereinafter cited as Brazil II].Google Scholar

32 According to the Brazil study, 93 percent of the large case litigators and 84 percent of the antitrust litigators felt that judicial assistance with discovery problems was inadequate. The attorneys felt that judges had a negative attitude toward discovery disputes and toward lawyers who sought judicial assistance in resolving disputes. Eighty-one percent of the antitrust litigators and 83 percent of the large case litigators felt this attitude had a negative impact on discovery. Lawyers said judges deal with discovery problems with condescension and impatience. Eighty-two percent of the large case litigators and 80 percent of the antitrust litigators favored a more active role in the judiciary in discovery. Id. at 787, 826, 864, 865. Large case litigators is defined as attorneys working on cases involving a minimum of $1 million. Brazil, Wayne D., Views from the Front Lines: Observations by Chicago Lawyers About the System of Civil Discovery, 1980 A.B.F. Res. J. 217, 219 [hereinafter cited as Brazil I].Google Scholar

33 According to the Brazil study, 90 percent of the large case litigators and 87 percent of the antitrust litigators favor the increased imposition of sanctions as a means of controlling discovery abuse. Brazil II, supra note 31, at 866. Brazil I, supra note 32, at 248; see also Peckham, supra note 21, at 803. The judicial reluctance to impose sanctions reflects a variety of factors and concerns: lawyers do not seek sanctions, out of a feeling that clients should not suffer for the sins of the attorney, fear of abuse of motions for sanction, resistance to limiting or denying the opportunity for a hearing on the merits of the case, concern about increased hostility that will decrease the chance of settlement, lack of judicial knowledge about the action, and a failure to appreciate the need to impose sanctions. Charles B. Renfrew, Discovery Sanctions: A Judicial Perspective, 67 Calif. L. Rev. 264 (1979). The Commission suggests that sanctions be imposed with greater frequency and recommends that the behaviors for which sanctions may be applied to be extended to include unwarranted motion practice. see also Edelstein, David N., The Ethics of Dilatory Motion Practice: Time for Change, in Symposium: Quality Advocacy and the Code of Professional Responsibility, 44 Fordham L. Rev. 1069 (1976). The Commission predicts that the financial disincentive created by the consistent application of sanctions will deter the abusive and dilatory behavior. To overcome concern that the ‘sins' of the attorney will be visited upon the head of the client, courts can frame sanction orders to prevent the attorney from billing a client for the fine. Peckham, supra note 21, at 802. In addition to the traditional monetary sanction of ordering fines or penalties, Brazil suggests a right to compensation for expenses caused by an opponent's breach of discovery obligations. For maximum effectiveness, judicial discretion in ordering sanctions must be decreased by creating clear standards for identifying what justifies failure to comply with the discovery rules. When deciding whether to preclude issues or evidence as a sanction, a judge might balance the likelihood that unmerited penalty will be imposed on a third party against the need to prevent unfair surprise, delay, and inefficiency. Peckham, supra note 21, at 797. Brazil, supra note 8.Google Scholar

34 Plenary authority to modify the standard rules for “good cause” is conferred by Rule 26(c). Fed. R. Civ. P. 26c. In a sense, a massive case is “good cause” in and of itself. The standard rules anticipate counsel and court who are concurrently engaged in many other matters and who require time to adjust schedules and to bring the instant matter mentally into focus. In a big case the parties are at it every hour of every day, and in our case we were similarly on hand on behalf of the court. Given the significance of little delays in big cases, in those cases the standard rules are a serious impediment.Google Scholar

35 Many local rules, such as those of the District Court for the Northern District of California, explicitly require such negotiations. Peckham, supra note 21.Google Scholar

36 The 1980 Amendments to the Federal Rules of Civil Procedure include modification of discovery procedures through case management devices and sanctions to deal with discovery abuse. New Rule 26(f) provides for a discovery conference to identify issues for discovery purposes and to schedule, plan, and limit discovery. Rule 37(b) has been amended, and Rule 37(g) added to provide sanctions for failure to comply with a 26(f) order or failure to participate in planning discovery. 85 F.R.D. 521, 526, 532, 533 (1980). Whether these changes will lead to an increase in active court control of the discovery process remains to be seen.Google Scholar

37 We found that when briefs were filed after oral argument was heard, they were much more helpful because they were focused on the issues that were of particular concern to us.Google Scholar

38 Similarly, to meet the needs of the big case, it is insufficient to routinely apply the Federal Rules of Civil Procedure, Rule 16, which envisions informal, repeated meetings that lead to the clear understanding of the issues, assure attorney preparedness, and limit trial by excluding irrelevant or unnecessary material. Rule 16 itself offering only minimal guidelines, many districts have adopted local rules to facilitate the resolution of the controversy and guide the pretrial process. The Commission drafted a model local rule that mandates early pretrial conferences for complex cases. This rule describes a procedural proposal requiring that the time limits defining the various pretrial phases and the pretrial process itself be established early and maintained firmly. An alternate model local rule includes the procedural elements of the Commission's rule but adds more substantive suggestions. Brazil, supra note 8, at 893–99. The Brazil model rule would compel discussion of the possibility of settlement (accord, Peckham, supra note 21, at 785), and prohibiting discovery before narratives of the factual and legal contentions were submitted would, in turn, limit and direct discovery. Dedicated to a comprehensive remedial approach to solving the problems encountered in discovery, Brazil proposes that attorneys be required to certify that there are good grounds for assertion of statements, drafted in good faith after reasonable investigation and as complete and accurate as available information permits. Sanctions against attorneys for violation of the certification duty would be available. A final innovative section of the local rule requires a good faith estimate of the cost and time of discovery to be given. This provision might provide the impetus for the client to restrain discovery activity and for the court to impose controls. See generally, Cohn, Sherman L., Federal Discovery: A Survey of Local Rules and Practices in View of Proposed Changes to the Federal Rules, 63 Minn. L. Rev. 253 (1979); Note, Pretrial Conference: A Critical Examination of Local Rules Adopted by Federal District Courts, 64 Va. L. Rev. 467 (1978).Google Scholar

39 Even without docket responsibilities, it was exceptionally difficult to stay abreast of issues and act expeditiously. The privilege process along was a mammoth undertaking. Aside from the complexity of the issues raised, the process required the examination of hundreds of thousands of pages of documents. When our responsibilities were expanded to the general management of the pretrial process and the resolution of all discovery disputes, the magnitude of the undertaking was compounded. In a very real sense, our ability to manage the litigation was governed by our ability to organize and manage our own affairs. We were able to accomplish this only because of the exceptional abilities of our associate, Leah Wadle, who before receiving her law degree had been a senior paralegal in a major Washington law firm and thus offered sophisticated organizational skills that proved to be indispensable to our internal operations. Because of this talent and her apparently boundless tolerance for detail, we were able to devote more of our time to substantive issues. This resulted in more expeditious action by us and significant cost savings for the parties. As important as Wadle's organizational skills were to the office, when coupled with her legal training (which allowed her to understand the various processes under our supervision) and knowledge of our management goals for each process, her value assumed a new dimension. She became an important management asset because through her the special masters were always available to the parties. To the extent she could not independently provide information and guidance to the attorneys when we were unavailable, she was a reliable conduit through whom critical information could be relayed to us for immediate action.Google Scholar

40 Eighty percent of all attorney surveyed in the Brazil study had used discovery tools as a means of gaining time or slowing down the action. This practice is particularly likely to be used by defense counsel since postponing judgment can be to her advantage. See Brazil II, supra note 31, at 852. Thus, delay caused by slow judicial decision making indirectly lends support to abusive discovery tactics.Google Scholar

41 See appendix 8.Google Scholar

42 The “control group” test that defines the attorney-client privilege as it applies to a corporate client was first articulated as follows: “[I]f the employee making communication … is in decision to control or even to take substantial part in decision about any action which corporation may take upon advice of attorney … he personifies the corporation when he makes his disclosure to lawyer, and attorney-client privilege applies.” City of Philadelphia v. Westinghouse Elec. Co., 210 F. Supp. 483, 495 (E.D. Pa.), petition for mandamus and prob. denied, General Elec. Co. v. Kirkpatrick, 312 F.2d 742 (3d Cir. 1962), cert, denied, 372 U.S. 943 (1963). The purpose of the attorney-client privilege is to encourage communication between employees and attorneys to achieve full disclosure. The control group test, however, ignores reality; employees not in the control group may be those who possess the information needed by a corporate lawyer or may be best able to put legal advice into effect. By removing the attorney-client privilege from communications involving employees not in the control group, the control group test thereby defeats the very premise upon which the privilege rests. Based on this reasoning, the Supreme Court recently rejected the use of the “control group” test in Upjohn Co. v. United States, 449 U.S. 383 (1981).Google Scholar

43 See appendixes 9 and 10.Google Scholar

44 Federal Rule of Civil Procedure 26(c) states in a paragraph on “Protective Orders”:. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to that motion.Google Scholar

45 See appendix 9, Pretrial Order No. 7, Protective Order, p. 5, 1 5; appendix 10, Pretrial Order No. 8, Documentary Discovery of Non-Parties, pp. 2–3, 14.Google Scholar

46 The constitutional and policy issues involved in issuing and in modifying protective orders have been addressed by only a few courts. In In re Halkin, 598 F.2d 176 (D.C. Cir. 1979), the United States Court of Appeals for the District of Columbia Circuit found a First Amendment right to disseminate discovery information. A protective order that prohibits such dissemination operates on the requesting party's First Amendment freedom of expression as a form of prior restraint and, as such, carries a strong presumption of unconstitutionality. In opposition to this First Amendment right are the interests of the litigants and of the discovery process itself—the right to a fair trial, protection of confidential information, and the maintenance of maximum effectiveness of the discovery process. Since the court cannot condition access to discovery data on the waiver of the requesting party's constitutional rights, one commentator has suggested the use of a balancing test to determine when a protective order may constitutionally issue. The test would weigh the First Amendment rights of the requesting party against the judicial interests of protecting the litigants and the discovery process. If the court determines that the First Amendment rights are outweighed, a protective order restraining the dissemination of the discovery information may constitutionally issue. To be consistent with traditional First Amendment analysis, the order must not be overbroad and should therefore be narrowly drawn and represent the least restrictive alternative available to reach the desired goal. See Comment, Protective Orders Prohibiting Dissemination of Discovery Information: The First Amendment and Good Cause, 1980 Duke L. Rev. 766. Similar issues arise when courts are requested to modify a protective order issued in a previous litigation. Modification is sought to avoid duplication of discovery efforts and to save time, cost, and labor. If modification requests are frequently granted, however, parties may become fearful that the protective orders they rely on in making disclosures will likewise be modified, and they may ultimately react by failing to cooperate in the discovery process. The lack of cooperation in discovery is precisely the problem the issuance of the orders sought to remedy. Thus, if modification is denied, the requesting party must duplicate efforts and expend resources; if the modification is granted, the judicial goals of encouraging disclosure and cooperation may be undermined. In addition to policy considerations, the courts must be mindful of potential constitutional conflicts created when protective orders are modified. For example, the disclosing party may have failed to assert a Fifth Amendment privilege against self-incrimination because of her reliance on the confidentiality mandated by the protective order, and due process rights may be infringed upon since the disclosing party assumed and relied on the inability of her opponents to disseminate the information obtained. In addressing the conflicting interests implicated when a modification of a protective order is sought, courts have used varying and inconsistent standards, at times placing the burden of proof on the requestor to show a need for the documents and at other times requiring the disclosing party to show a need for protection. One standard proposed would grant a modification only upon a showing by the requesting party that it could not obtain the material through other means; this standard would eliminate the Fifth Amendment privilege problem. If this burden is not met, then reliance by the protected party overrides the requestor's need. In addition, the requestor must show that there would be a savings of time, money, and labor if the documents were obtained through the process of modification of the protective order instead of through the alternate means. As a final measure, the protected party must be allowed to assert any rights retroactively, and should the party establish that access would violate the constitutional rights, modification should be denied. For a more detailed discussion of these issues, see Note, Modification of Protective Orders: Balancing Practical Considerations and Addressing Constitutional Rights, 14 Suffolk U. L. Rev. 1011 (1980) and cases discussed therein.Google Scholar

47 These guidelines were promulgated after extensive briefing and comment by the parties.Google Scholar

48 For large case litigators, the attorney-client privilege caused discovery problems in 36 percent of their cases, and other privileges and protections created obstacles in 50 percent of the cases. Brazil II, supra note 31, at 833. Some litigators suggested that one reason for the impairment of discovery efforts was the lack of clarity of the waiver doctrine as it applies to corporate parties. But see note 42 supra.Google Scholar

49 See appendix 12.Google Scholar

50 As in all other aspects of the pretrial process, flexibility is the key when guidelines are used as a management technique. Guidelines that functioned well in one case must be tailored to meet the particular needs of another case. For example, the guidelines used in A T&T served as the basic structure in a patent infringement case, but changes were made regarding the application of the attorney-client privilege to patent agents. See In re Amoxicillin Patent and Antitrust Litigation, M.D.L. Docket No. 328, Misc. 78–0145, All Cases, D.D.C.Google Scholar

51 Judge Greene issued only ten rulings in response to appeals taken from the pretrial Orders and Opinions of the Special Masters. There were only six appeals challenging the application of standards to a claim of work product or attorney-client privilege. The order of the special masters was affirmed in five of these appeals while the sixth was remanded in light of issues raised by the court and not considered by the special masters. (Two of these appeals were subsequently vacated and reversed when the United States Court of Appeals for the District of Columbia Circuit reversed a court ruling.). Aside from privilege decisions, two appeals challenged orders regarding party compliance with the stipulation process: one appeal was dismissed, and the other led to a clarification of the stipulation process, vacating the order of the special masters insofar as it was inconsistent with the clarification. After the trial began, many of the special masters' decisions regarding the admissibility of findings of fact under Rule 803(8)(C) of the Federal Rules of Evidence were appealed. The court applied the “clearly erroneous” standard of review to these appeals (a standard higher than that normally applied to a master's conclusions of law) and only overturned those findings where the masters applied the guidelines that had been promulgated by the court in a way that the court had not contemplated.Google Scholar

52 One judge has observed that parties are more cooperative during pretrial when they have participated in forming the process. See Peckham, supra note 21, at 782.Google Scholar

53 A few third parties who were outside the jurisdiction of the court informally questioned our authority to impose our privilege procedures on them. In response we informed them that if their objections were formally raised and found to be meritorious, prompt action would be sought in the appropriate jurisdiction. The claim was never raised.Google Scholar

54 An index page to a document for which a privilege claim was contemplated would appear as below:Google Scholar

55 See appendix 13.Google Scholar

56 See section IV.C.2d) of this article on the product of stipulation negotiations.Google Scholar

57 The proposed amendment to Rule 26(b) was a statutory solution to this inflated discovery. The change would have limited the “relevance” of discovery to the “issues raised by the claims and defenses” and not, as the Rule currently reads, to the “subject matter of the pending action.” This proposal was rejected and therefore not incorporated into the 1980 Amendments to the Federal Rules of Civil Procedure. An alternate system views the possible area of discovery as a series of concentric circles surrounding a central “core.” Initial discovery is confined to the “core” issues central to the controversy. If settlement is not reached and there is reason to believe that additional discovery will provide relevant evidence, discovery is expanded from this “core” to the next concentric circle. Brazil, supra note 8. A third approach to the discovery difficulties resulting from notice pleading would be changing the pleading requirements to require narrow and more specific allegations. Commission, supra note 1; Seminar on Protracted Cases, supra note 14, at 432, 441.Google Scholar

58 For example, the Complaint alleged that “the defendants and coconspirators have been engaged in an unlawful combination and conspiracy to monopolize, and the defendants have attempted to monopolize and have monopolized, the aforesaid interstate trade and commerce in telecommunications service, and submarkets thereof, and telecommunications equipment, and submarkets thereof, in violation of Section 2 of the Sherman Act” (¶ 27, p. 11); that the defendants and coconspirators agreed to “attempt to prevent, restrict and eliminate competition from other telecommunications common carriers, … from private telecommunications systems, … [and] other manufacturers and suppliers of telecommunications equipment,” (¶ 28, p. 12); that the defendants have “attempted to obstruct and obstructed the interconnection of Specialized Common Carriers, … Miscellaneous Common Carriers, … Radio Common Carriers, … Domestic Satellite Carriers with the Bell System,” (¶ 29, pp. 12–13); that “defendants have achieved and maintained a monopoly of telecommunications service [and] … equipment; … actual and potential competition … has been restrained and eliminated; [and] purchasers … have been denied the benefits of a free and competitive market.” (¶ 30, p. 13.). In similarly broad terms, the Answer “den[ied] each and every allegation contained in paragraph 27 … 28 [and] … 29 of the Complaint” (¶¶ 54, 55, 56, p. 20); that “Congress has determined that telecommunications carriers should be regulated, and the telecommunication industry should be structured, under the standard of the public interest in good, universally available, service at reasonable rates, rather than under the policy of favoring competition applicable to enterprises generally under the Sherman Act” (¶ 18, p. 10) and the “highly integrated structure of the telecommunications industry thus reflects the considered will of Congress” (¶ 17, p. 9).Google Scholar

59 This is a common procedure followed in administrative proceedings before the FTC. This has been employed for a number of years in massive litigation (see Seminar on Protracted Cases, supra note 14, at 411, 458, 507, 509 (1958) and is recommended in the Manual for Complex Litigation.Google Scholar

60 The parties' filings were sequential. After the First Statement by the Government the defendants' First Statement was to be factually responsive and follow the same organizational structure employed by the plaintiff, except for the factual contentions relating to their affirmative case. Correspondingly, the government's Second Statement was to be responsive to the defendants' First and to follow their organizational structure relative to their affirmative case.Google Scholar

61 Except for good cause shown, specific contentions not advanced could not be proven at trial, and specific evidence that was not listed could not be offered as proof on any issue.Google Scholar

62 In Life Music, Inc. v. Broadcast Music, Inc., 31 F.R.D. 3 (S.D.N.Y. 1962), the parties could not agree on a definition of the triable issues. Apparently convinced that the counsel were unable to proceed effectively, the judge filed a pretrial order imposing his views as to what the issues were on the parties. See Comment, The Role of the Court in Simplifying the Triable Issues at Pre-Trial Conference, 72 Yale LJ. 383 (1962).CrossRefGoogle Scholar

63 See appendix 3.Google Scholar

64 The government had agreed to stipulate to about 150 paragraphs of the defendants' 2,147 pages of contentions, and the defendants had agreed to stipulate to over 1,500 paragraphs of the government's 1,872 pages of contentions.Google Scholar

65 See appendix 14 for a sample of the printout for one episode.Google Scholar

66 See appendix 15.Google Scholar

67 See appendix 16.Google Scholar

68 See appendix 17. See appendix 18 for the weekly reports we made to the judge based on these reports.Google Scholar

69 All negotiations were eventually conducted in one central location in Washington. One floor of a motel was leased, and each team was assigned a specific room in which to conduct negotiations and maintain records. This allowed each team to be observed conveniently on a daily basis.Google Scholar

70 One notable practice was the tendency of many negotiators to use all time available and to respond to everything. They occasionally engaged in unnecessary interchanges over the merits of issues that had already been joined.Google Scholar

71 See United States v. AT&T, No. 74–1698, slip op. at 4, n.6 (D.D.C. Sept. 9, 1980).Google Scholar

72 Although the trial lasted 11 months, during this time proceedings were recessed for 2 months, and trial on average was conducted only 3 days per week. This should be compared with the trial in the antitrust litigation of United States v. IBM, 69 Civ. 200 (S.D.N.Y., filed Jan. 17, 1969), which is less complex in many respects and a fraction of the size of this litigation and which was in its fourth year of trial when it was dismissed by the government.Google Scholar