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(excerpted from The Manual for Complex Litigation, '95 ed.)

20. General Principles
20.1 Judicial Supervision
20.11 Early Identification and Control
20.12 Assignment to Single Judge
20.121 Recusal/Disqualification
20.122 Other Judges
20.123 Related Litigation
20.13 Effective Management
20.14 Supervisory Referrals to Magistrate Judges and Special Masters

Fair and efficient resolution of complex litigation requires that the court exercise early and effective supervision (and, where necessary, control), that counsel act cooperatively and professionally, and that the judge and counsel collaborate to develop and carry out a comprehensive plan for the conduct of pretrial and trial proceedings. Section 20 discusses matters that cut across all phases of complex litigation.

Although not without limits, the court's express and inherent powers enable the judge to exercise extensive supervision and control of litigation. The Federal Rules of Civil Procedure, particularly Rules 16, 26, 37, 42, and 83, contain numerous grants of authority that supplement the court's inherent power -fn.2 to manage litigation. Fed. R. Civ. P. 16(c)(12) specifically addresses complex litigation, authorizing the judge to adopt "special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems." In planning and implementing case management, its purpose must be kept in mind.

Case management is not an end in itself; rather it is intended to bring about a just resolution as speedily and inexpensively as possible. It should be tailored to the needs of the particular litigation and to the resources available; make-work activity should be avoided.

Those resources include not only those of the parties but also those of the judicial system. Judicial time is the scarcest of these, and an important part of case management is for judges to use their time wisely and efficiently and to make use of all available help. Time pressures may lead some judges to think that they cannot afford to devote time to civil case management.

It is true that the extra attention given by the judge to a complex case can encroach upon the time immediately available to attend to other matters. But judges have found that an investment of time in case management in the early stages of the litigation will lead to earlier dispositions, less wasteful activity, shorter trials, and, in the long run, to economies of judicial time and a lessening of judicial burdens.

20.11 Early Identification and Control

Judicial supervision is most needed and productive early in the litigation. To this end, an initial pretrial conference under Rule 16 - fn.3 should be held as soon as practical (many judges hold the conference within 30 to 60 days of filing), even if some parties have not yet appeared or even been served.

Rule 16(b) requires that the judge, usually after holding a scheduling conference, issue a scheduling order -fn.4 "as soon as practicable but in any event within 90 days after the appearance of a defendant and within 120 days after the complaint has been served on a defendant" (local rules may establish different deadlines).

The initial pretrial conference may be used for this purpose unless a separate scheduling conference is thought to be needed. Many judges use standing case orders_sometimes tailored to specific types of litigation_to elicit specific information prior to the conference and inform counsel of the matters they must be prepared to discuss. -fn.5

The assigned judge should therefore be alerted as soon as possible to the filing of a potentially complex case. Some courts require the clerk's office to notify the judge immediately of the filing of certain types of cases such as class actions and mass tort, antitrust, and securities fraud cases that typically merit special judicial attention. Courts often require that a civil cover sheet be filed with the complaint indicating, among other things, whether a case should be considered "complex."

Whether a case will require increased judicial supervision, however, may not be apparent from the docket sheet or the complaint itself. Counsel should be directed to notify the court of the filing of a potentially complex case and identify by name and court all pending cases (state and federal) that may be related; many courts require this by local rule.

20.12 Assignment to Single Judge

Each multijudge court should determine for itself whether complex litigation should be assigned according to the court's regular plan for case assignment, under a special rotation for complex cases, or perhaps to one or more judges particularly qualified by reason of experience.

In courts in which actions are not as signed automatically to a specific judge upon filing, an individual assignment nevertheless should be specially made as soon as a case is identified as complex or a part of complex litigation. In unusual situations, the demands of complex litigation may be so great that the assigned judge should be relieved from some or all other case assignments for a period of time or be given assistance on aspects of the litigation from other judges.

20.121 Recusal/Disqualification

The judge to whom a complex case is assigned (or has been reassigned) should promptly review the pleadings and other papers in the case, the identities of parties and attorneys, and the nature of interests affected by the litigation for possible conflicts that may require recusal or disqualification. -fn.6

To assist the judge, counsel should submit a list of all entities affiliated with the parties and all attorneys and firms associated in the litigation. This review must be conducted at the outset, but the court needs to consider both present and potential conflicts that may arise as a result of the joinder of additional parties, the identification of class members, or the assignment of other related cases, with the accompanying involvement of additional litigants and counsel. -fn.7 As the case progresses, the court should remain alert to conflicts that may arise as additional persons and interests enter the litigation or as the judge's staff changes. -fn.8

A judicial officer is required to recuse (1) in any proceeding in which the officer's "impartiality might reasonably be questioned" -fn.9 or (2) if any of the conflicts of interest enumerated in 28 U.S.C. 455(b) exist. Where the ground for disqualification arises under the former provision only, the parties may waive it after full disclosure on the record; the conflicts of interest enumerated in 455(b) may not be waived. -fn.10

Where the officer has devoted "substantial judicial time" to a matter, however, disqualification based on a financial interest in a party (other than an interest that might be "substantially affected by the outcome") may be avoided by divestment. -fn.11

Reassignment, when warranted, should be accomplished as promptly as possible, and the judge to whom the litigation is to be reassigned should make a similar inquiry into potential grounds for recusal before accepting the reassignment and giving notice to the parties.

20.122 Other Judges

Although one judge should supervise the litigation, other judges may be requested to perform special duties, such as conducting settlement discussions. Moreover, in the course of consolidated or coordinated pre- trial proceedings, severable claims or cases may appear that could be assigned to other judges.

20.123 Related Litigation

Complex litigation frequently involves two or more separate but related cases. All related cases pending or which may later be filed in the same court, whether or not in the same division, should be assigned at least initially to the same judge (local rules often provide for the assignment of related cases to a single judge, typically the judge receiving assignment of the earliest-filed case). Pretrial proceedings in these cases should be coordinated or consolidated under Fed. R. Civ. P. 42(a), even if filed in more than one division of the court. -fn.12

It may be necessary to transfer to the district judge related adversary proceedings in bankruptcy, including proceedings to determine the dischargeability of debts. -Fn.13 Counsel should be directed to inform the assigned judge of any pending related cases (as many local rules require); related cases may be identified on the face of the complaint. The judge to whom complex litigation has been assigned should also attempt to ascertain whether related cases are pending in the judge's court. Assignment of related criminal and civil cases to a single judge will improve efficiency and coordination, especially when the cases are pending at the same time. Other factors, however, such as the possibility that extensive judicial supervision of pretrial proceedings in the civil litigation may be needed during the time the criminal trial is being conducted, may suggest that the cases be handled by different judges. Consolidation may be possible even when related cases are filed in different courts.

Cases in other districts may be capable of being transferred under 28 U.S.C. 1404(a) or 1406 -Fn.14 to the consolidation court by the court in which they are pending. Pretrial proceedings in related cases may also be consolidated in a single district by the judicial panel on multidistrict litigation under 28 U.S.C. 1407. Cases brought in state court may be removed to federal court -Fn.15 and transferred, or refiled in the consolidating district court following voluntary dismissal or dismissal based on forum non conveniens.

When transfer of all cases to a single court for centralized management is not possible, the affected courts should attempt to coordinate proceedings through informal means to the extent practicable in order to minimize conflicts, inconsistent rulings, and duplication of effort. Coordination can be accomplished by arrangements made by counsel, appropriate communications between judges, joint pretrial conferences and hearings at which both judges preside, and the issuance of parallel orders. It may be facilitated by designation of a "lead" case in the litigation; rulings in the lead case would presumptively apply to the other coordinated cases, and pretrial proceedings in those cases may be stayed pending its resolution.

20.13 Effective Management

Effective judicial management generally has the following characteristics:

* It is active.
The judge attempts to anticipate problems before they arise rather than waiting passively for matters to be presented by counsel. Because the attorneys may become immersed in the details of the case, innovation and creativity in formulating a litigation plan may frequently depend on the court.

* It is substantive.
The judge's involvement is not limited to procedural matters. Rather, the judge becomes familiar at an early stage with the substantive issues in order to make informed rulings on issue definition and narrowing, and on related matters, such as scheduling, bifurcation and consolidation, and discovery control.

* It is timely.
The judge decides disputes promptly, particularly those that may substantially affect the course or scope of further proceedings. Delayed rulings may be costly and burdensome for litigants and will often delay other litigation events. Sometimes the parties may prefer that a ruling be timely rather than perfect.

* It is continuing.
The judge periodically monitors the progress of the litigation to see that schedules are being followed and to consider necessary modifications of the litigation plan. The judge may call for interim reports between scheduled conferences.

* It is firm, but fair.
Time limits and other controls and requirements are not imposed arbitrarily or without considering the views of counsel, and they are subject to revision when warranted by the circumstances. Once having established a program, however, the judge expects schedules to be met and, when necessary, imposes appropriate sanctions (see infra section 20.15) for derelictions and dilatory tactics.

* It is carefully prepared.
Heavy-handed case management by an unprepared judge may often be counterproductive, while an early display of careful preparation sets the proper tone and can enhance the judge's credibility and effectiveness with counsel. The judge's role in developing and monitoring an effective plan for the orderly conduct of pretrial and trial proceedings is crucial. Although the elements and details of the plan will vary with the circumstances of the particular case, each plan must include an appropriate schedule under which the case is to proceed to resolution.

Ordinarily, the plan should prescribe a series of procedural steps with firm dates giving direction and order to the case as it progresses through pretrial proceedings to summary disposition or trial. In some cases, the court may be able to establish an overall plan for the conduct of the litigation at the outset; in others, the plan must be developed and refined in successive stages.

The more prudent course is to err on the side of over-inclusiveness in the plan rather than risk omission of critical elements; components of the plan that prove impractical may always be modified.

Time limits and deadlines will often be necessary for effective case management, though a firm but realistic trial date, coupled with immediate access to the court in the event a dispute cannot be resolved by agreement among counsel, may suffice in litigation involving experienced attorneys working cooperatively.

The attorneys_who will be more familiar than the judge with the facts and issues in the case_should play a significant part in developing the litigation plan and are primarily responsible for its execution. The judge should provide supervision and maintain control in a manner that recognizes the burdens placed on counsel by complex litigation, and he or she should foster mutual respect and cooperation not only between the court and the attorneys but also among the attorneys.

20.14 Supervisory Referrals to Magistrate Judges and Special Masters

The judge should decide early in the litigation whether to refer all or any part of pretrial supervision and control to a magistrate judge. In making that decision, the judge needs to consider a number of factors, including the experience and qualifications of the available magistrate judge, the relationship and attitude of the attorneys, the extent to which a district judge's authority may be required, the time the judge has to devote to the litigation, the novelty of the issues presented and the need for innovation, and the judge's personal preferences.

Some judges believe that judicial supervision of complex litigation should ordinarily be exercised directly by them rather than by a magistrate judge, even in courts that routinely make such referrals for discovery or other pretrial purposes. They believe that referrals in complex cases may cause additional costs and delays when the parties seek review by the judge, weaken the impact of directions given to counsel during pretrial proceedings, diminish supervisory consistency and coherence as the case proceeds to trial, create greater reluctance to try innovative procedures that might aid in resolution of the case, and cause the judge to be unfamiliar with the case at the time of trial.

Other judges have found that magistrate judges have the competence, experience, and authority to be able to provide effective case management during the pretrial stage, enabling the judge to devote time to more urgent matters. Even if no general referral is made to a magistrate judge, referral of particular matters may be helpful. The judge may refer supervision of all discovery matters, or supervision of particular discovery issues or disputes, particularly those that may be time consuming or require an immediate ruling; examples include resolving deposition disputes by telephone, ruling on claims of privilege and motions for protective orders, and conducting hearings on procedural matters, such as personal jurisdiction.

Magistrate judges may also be called on to assist counsel with formulation of stipulations and statements of contentions, and to facilitate settlement discussions. The law of the circuit should be consulted with respect to the limits on referrals to magistrate judges.

Referral of pretrial management to a special master (not a magistrate judge) is not advisable. Rule 53 permits referrals only in "exceptional cases," and because pretrial management calls for the exercise of judicial authority, its exercise by someone other than a judicial officer is particularly inappropriate. -Fn.16 Moreover the additional expense imposed on parties as a result militates strongly against such appointment. -Fn.17

Appointment of a special master (or of an expert under Fed. R. Evid. 706) for limited purposes requiring special expertise may sometimes be appropriate (e.g., when a complex program for settlement needs to be devised). -Fn.18 Any referral should be covered by an order that specifically describes what is being referred, the authority being delegated to the magistrate judge or master, and the procedure for review by the judge. The court should call for regular progress reports from the magistrate judge or master.

FOOTNOTES

2. See, e.g. , Chambers v. NASCO, Inc., 111 S. Ct. 2123, 2132-37 (1991).

3. For discussion of the matters that should or may be covered in this and subsequent conferences, see infra 21.2 (pretrial conferences). Special procedures may be needed even before the initial conference; for example, it may be necessary to take immediate action to preserve evidence.

4. For a sample scheduling order, see infra 41.33.

5. For a sample order, see infra 41.54; see also Manual for Litigation Management and Cost and Delay Reduction (Federal Judicial Center 1992) [hereinafter Litigation Manual], form 12, at 193-95.

6. Judges are required by federal law to inform themselves about their personal and fiduciary financial interests, and to make a "reasonable effort" to inform themselves about the personal financial interests of their spouse and minor children residing in their household. 28 U.S.C. 455(c).

7. See, e.g., In re Cement Antitrust Litigation, 688 F.2d 1297 (9th Cir. 1982), aff'd under 28 U.S.C. 2109 sub nom. Arizona v. United States Dist. Court, 459 U.S. 1191 (1983) (disqualification of judge, five years after suit instituted, upon discovery that spouse owned stock in a few of the more than 200,000 class members).

8. In particular, law clerks should avoid having a relationship (including a pending offer) with any party or counsel. See, e.g., Linda S. Mullenix, Beyond Consolidation, 32 Wm. & Mary L. Rev. 475, 539-40 (1991) (discussing complex case in which magistrate judge recused when law clerk was offered employment with firm of counsel representing party).

9. 28 U.S.C. 455(a); Code of Judicial Conduct for United States Judges, Canon C3(c)(1), reprinted in 69 F.R.D. 273, 277.

10. 28 U.S.C. 455(e).

11. Id. 455(f).

12. Under 28 U.S.C. 1404(b) the court may, upon motion, transfer cases pending in the same district, or motions or hearings therein, to a single division.

13. See, e.g., In re Flight Trans. Corp. Sec. Litig., 730 F.2d 1128 (8th Cir. 1984).

14. These statutes authorize such transfer only if personal jurisdiction and venue lie in the transferee court. See, e.g. , Shutte v. Armco Steel Corp., 431 F.2d 22, 24 (3d Cir. 1970) ( 1404(a)); Dubin v. United States, 380 F.2d 813 (5th Cir. 1967) ( 1406). If they do not, transfer is improper even if plaintiffs consent. Hoffman v. Blaski, 363 U.S. 335 (1960).

15. See 28 U.S.C. 1441-1452.

16. See LaBuy v. Howes Leather Co., 352 U.S. 249 (1957) (the length and complexity of a case and the congestion of the court's docket do not alone justify a comprehensive reference to a special master).

17. Prudential Ins. Co. of Am. v. United States Gypsum Co., 991 F.2d 1080 (3d Cir. 1993) (writ of mandamus issued overturning appointment of master to hear merits of a claim for cost of testing, monitoring, and removing asbestos-containing products at thirty-nine sites).

18. See Wayne Brazil et al., Managing Complex Litigation: A Practical Guide to the Use of Special Masters (1983).

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