40.21	General — Case-Management Order

[caption]

Order No. 				 
(Initial Case-Management Order)

	Having considered the comments and proposals of the parties presented at the initial conference held
      [date]       , the court ORDERS:
1.	Pretrial Consolidation. The cases listed on Attachment            are, until further order, consolidated for pretrial purposes. This order does not constitute a determination that these actions should be consolidated for trial, nor does it have the effect of making any entity a party to an action in which it has not been joined and served in accordance with the Federal Rules of Civil Procedure.
(a)	Master Docket and File. The clerk will maintain a master docket and case ﬁle under the style “In re 				 LITIGATION,” master ﬁle number 		. All orders, pleadings, motions, and other documents will, when ﬁled and docketed in the master case ﬁle, be deemed ﬁled and docketed in each individual case to the extent applicable.
(b)	Captions; Separate Filing. Orders, pleadings, motions, and other documents will bear a caption similar to that of this order.1 If generally applicable to all consolidated actions, they shall include in their caption the notation that they relate to “ALL CASES” and be ﬁled and docketed only in the master ﬁle. Documents intended to apply only to particular cases will indicate in their caption the case number of the case(s) to which they apply, and extra copies shall be provided to the clerk to facilitate ﬁling and docketing both in the master case ﬁle and the specified individual case ﬁles.
(c)	Discovery Requests and Responses. Pursuant to Fed. R. Civ. P. 5(d), discovery requests and responses will not be ﬁled with the court except when specifically ordered by the court or to the extent offered in connection with a motion.2
[(d)	Coordinated Actions. The actions listed on Attachment           are not consolidated for pretrial purposes at the present time, but discovery in such cases shall be coordinated with that in the consolidated actions to prevent duplication and conﬂicts.3]
2.	Organization of Counsel4
(a)	Plaintiffs. To act on behalf of plaintiffs with the responsibilities prescribed in [Attachment          ] [see section 40.22], the court designates—
(1) as Liaison Counsel: 		[name, address, telephone number]		
(2) as Lead Counsel: 		[name, address, telephone number]		
(3) as additional members of Plaintiffs’ Steering Committee:
				[names, addresses, telephone numbers]				

(b)	Defendants. To act as liaison counsel on behalf of all defendants [except defendant(s)                 ] with the responsibilities prescribed in [Attachment 		] [see section 40.22, ¶4], the court designates                 [name, address, telephone number]		.
(c)	Reimbursement. If agreement cannot be reached on a method for periodically reimbursing attorneys for expenses incurred and paying them for services rendered as lead or liaison counsel, the matter will be presented to the court for resolution.
(d)	Time Records. Counsel who anticipate seeking an award of attorney fees from the court shall comply with the directives contained in [Attachment                ] [see section 40.23] regarding the maintenance and ﬁling of contemporaneous records reﬂecting the services performed and the expenses incurred.
3.	Service of Documents
(a)	Orders. A copy of each order will be provided to plaintiffs’ liaison counsel and defendants’ liaison counsel for distribution as appropriate to other counsel and parties. [A copy shall also be provided to counsel for defendant(s)			.]
(b)	Pleadings, Motions, and Other Documents. Plaintiffs’ liaison counsel will be provided with 
       copies of each pleading, motion, or other document ﬁled by a party; defendants’ liaison counsel will be provided with      copies of each such document. [Pursuant to Fed. R. Civ. P. 5(b), service on liaison counsel constitutes service on other attorneys and parties for whom liaison counsel is acting.5]
[(c)	Service of Original Complaints; Amendments Adding Parties. To eliminate disputes about service of process and to reduce the expense of such service, defendants         [name]         and 
         [name]          have agreed to waive service of process for claims filed in federal court that fall within the scope of the 		[above-captioned]    litigation, subject to the provisions of Rule 4(d). Thenotice required by Rule 4(d) should be sent to 
       [name and address of representative/counsel to receive service]      and          [name and address of representative/counsel to receive service]   . Plaintiffs have 30 days from the date of this order or the date of filing, whichever is later, to provide notice of the original complaint or an amendment adding one or more of the above defendants to the complaint.6]
4.	Status Conferences
(a)	Regularly Scheduled Conferences. The court will convene a status conference in this litigation every      [insert scheduled time]    , subject to the court’s calendar. Except for emergencies, motions should not be brought for hearing at any time other than a regularly scheduled status conference. To be heard at a status conference, motions must be fully briefed at least 
           [insert time period]       . Lead counsel for the parties shall (1) confer at least     [insert time period]     before each scheduled conference and attempt to resolve outstanding disputes and (2) provide the court at least  [insert time period]  prior to the hearing a joint letter listing all motions and other matters the parties anticipate addressing at the conference. Parties should make every effort not to notice depositions for days on which status conferences are scheduled, and no deposition shall go forward on such days without prior leave of court.
(b)	Telephone Conferences. Telephone conferences may be scheduled at the court’s discretion by prior arrangement through the court’s chambers, if all necessary parties are available and receive at least 24 hours notice. 
5.	Refinement of Issues
(a)	General Briefing Requirements. Briefs in support of, or in opposition to, any motions may not exceed  [number of]  pages without leave of court. Reply briefs must be limited to [number of]  pages without leave of court.
(b)	Rule 12 Motions. [Include rulings on pending Rule 12 motions if appropriate, or establish dates for ﬁling, briefs, and arguments. For example, “The motions of defendants A.B. and C.D. to dismiss the complaint of plaintiff E.F. for failure to state a claim on which relief may be granted are, upon consideration, DENIED. A similar motion is hereby deemed ﬁled by each other defendant, and the same order deemed made on each such motion.”]
(c)	Pleadings. Each defendant shall have until 	        [date]	 , to ﬁle its answer to the complaint, including any cross-claims or counterclaims. Answers to any cross-claims or counterclaims will be ﬁled by         [date]        . Except for good cause shown, no additional parties may be joined as plaintiff, defendant, or third-party defendant after         [date]         .
(d)	Summary Judgment. The following issues may be submitted for early resolution on motions under Fed. R. Civ. P. 56: 											.
		Subject to further order of the court, motions seeking summary judgment on these issues will be ﬁled with supporting affidavits and briefs by      [date]     . Opposing affidavits and briefs will be ﬁled by       [date]      , and any reply briefs by        [date]       . 
(e)	Class Action. Attorney        [name]      will serve as interim counsel to represent the proposed class until the court determines whether to certify the action as a class action. To pursue class action treatment, plaintiffs must ﬁle by        [date]     , a single, consolidated, special master amended complaint.
			[Note: In an MDL proceeding, the consolidated class action complaints should ordinarily be filed in the transferee district.] The parties shall meet and confer to determine what, if any, expedited discovery needs to be conducted to address the class issues and specify the date by which plaintiffs will file a motion seeking class certification.7
			A motion for class certification must do the following: identify the class(es) and any subclass(es) for which they seek certification; detail the facts that show satisfaction of the requirements of Fed. R. Civ. P. 23(a) and (b), including the identity of named plaintiff(s) to represent each class and subclass, the qualifications of counsel for each class and subclass, and the rate, percentage, or other formula for calculating the amount of attorney fees counsel expect to request for representing the proposed class; present a plan for managing the litigation for trial; describe the forms, methods, and financing to be used to give notice to class members; and identify and include reports and affidavits of any experts to be used to support class certification.
			Defendants will ﬁle by         [date]         , any objections to class certification, specifying with particularity the factual and legal basis of their objection and identifying any facts on which an evidentiary dispute exists. Defendants must identify and include reports and affidavits of any experts to be used in opposition to class certification. 
			[Optional] A hearing will be conducted by the court, under Rule 23(c), on      [date]     , at which time the parties may present affidavits and declarations, extracts of depositions, responses to interrogatories, and documentary evidence relevant to any factual disputes. Only on a showing of good cause will a party be permitted to call a witness to testify in person at the hearing. In any event, only an expert whose report has been provided in the motion or opposition will be permitted to testify.
6.	Discovery
(a)	Approval of Expedited Discovery. Permission to take expedited discovery of a plaintiff and a plaintiff’s health care provider is granted if all of the following conditions are present:
(1)	plaintiff or a member of plaintiff’s family is terminally ill;
(2)	there is an urgent need to record and preserve the testimony because of the gravity of the illness; and 
(3)	[if applicable] plaintiff has completed the Plaintiff Fact Sheet and provided the medical authorizations required by the fact sheet and defendants have had an opportunity to conduct a reasonable amount of informal discovery prior to the taking of any deposition.
(b)	Initial Disclosures. Initial disclosures under Rule 26(a) shall be made unless a party objects prior to or during the Rule 26(f) conference that disclosures are inappropriate in the context of the litigation and the court reviews the objection and agrees not to require such disclosure. [Alternative, if agreed or the court orders: The parties have agreed:/The court orders: that in light of the discovery plan set forth below, the parties are relieved of the responsibility to provide initial disclosures under Rule 26(a)(1).]
(c)	Schedule. Discovery shall be conducted according to the schedule at Attachment           [see section 40.24]. All discovery [other than on the issue(s) of                      ] shall be completed by
      [date]       .
(d)	General Limitations. All discovery requests and responses are subject to the requirements of Fed. R. Civ. P. 26(b)(1), 26(b)(2), and 26(g). Discovery shall not, without prior approval of the court, be taken of members of the proposed class or of persons in countries outside the United States; and any request for such discovery shall indicate why the discovery is needed and the specific information or documents sought.
(e)	Confidentiality Order. See Attachment                [see section 40.27].
(f)	Documents
(1)	Preservation. See Attachment               [see section 40.25]. 
(2)	Numbering System. Counsel shall develop and use a system for identifying by a unique number or symbol each document produced or referred to during the course of this litigation. All copies of the same document should ordinarily be assigned the same identification number.
(3)	Rolling Production. The parties must produce documents to which they have not raised an objection on a rolling basis rather than waiting until all documents responsive to a request have been gathered. The parties must meet and confer regarding a schedule for the orderly production of different categories of documents.
(4)	Document Depositories. See Attachment                          [see section 40.26].
(5)	Avoidance of Multiple Requests and Coordination of Document Production with Other Courts. Counsel shall, to the extent possible, coordinate and consolidate their requests for production and examination of documents to eliminate duplicative requests from the same party in this proceeding or in similar proceedings in other courts. No party shall request documents available to it at a document depository or from its own liaison counsel.
	[Alternative: Defendants have agreed [or “The court orders the parties”] to produce in these proceedings all documents and information that they produce in related litigation dealing with the same     [insert the product, event, or set of transactions that define the litigation]    in other state and federal courts, on the same schedule or as close to the same schedule as practicable. Plaintiffs have agreed [or “The court orders”] that the sequence in which defendants produce the documents need not conform to the requirements of Rule 34(b).]
(6)	Privilege. A party who, relying on any privilege or on the work product doctrine, does not produce all relevant or requested documents in response to a request for production of documents or a subpoena must state that it is invoking a privilege and must specify which privilege or doctrine it is invoking. The parties are to confer to determine the format and time for production of privilege logs.  
		Where courts in other jurisdictions have ordered the production of any document initially withheld by defendant as privileged or work product, the party shall either produce the document in these proceedings or timely move for a protective order.
(g)	Interrogatories. Counsel shall, to the extent possible, combine their interrogatories to any party into a single set of questions. No question shall be asked that has already been answered in response to interrogatories ﬁled by another party [or in response to a “fact sheet” submitted by the same party (as provided in section 40.52)] unless there is reason to believe that a different answer will be given. [Without leave of court, interrogatories shall not include more than 	 separate questions, including subparts.] Pursuant to Rule 26(e)(2), the parties must promptly amend answers to interrogatories to provide complete additional or corrective information.
(h)	Depositions. See Attachment 		 [see section 40.29].
(i)	Special Agreements. All parties shall be under a continuing duty to make prompt disclosure to the court (and, unless excused by the court for good cause shown, to other parties) of the existence and terms of all agreements and understandings, formal or informal, absolute or conditional, settling or limiting their rights or liabilities in this litigation. This obligation includes not only settlements, but also such matters as “loan receipt” and “Mary Carter” agreements, and insurance, indemnification, contribution, and damage-sharing agreements.
7.	Trial. Subject to further order of the court, the parties are directed to be ready for trial on all issues [except 				] by           [date]           . 
	[Counsel are advised that the court will require a listing in advance of trial of the factual contentions each party expects to prove at the trial, identifying the witnesses and documents to be presented in support of each such contention, and the court may preclude the presentation of any contention, witness, or document not so identified.]
8.	[Optional: Next Conference. The next pretrial conference is [tentatively] scheduled for      [date]      . See ¶ 4(a) above.]
9.	Later Filed Cases. The terms of this order, including pretrial consolidation, shall apply automatically to actions later instituted in, removed to, or transferred to this court (including cases transferred for pretrial purposes under 28 U.S.C. § 1407) that involve claims of 				             . 
		Objections to such consolidation or other terms of this order shall promptly be ﬁled, with a copy served on liaison counsel for plaintiffs and defendants.

Dated: 												
									United States District Judge

Attachments: [Attachments to this order can be found from sections 40.22 to 40.3.]

Notes:
	1.	See supra section 40.1.
	2.	As a means of keeping advised of the progress of discovery without unnecessarily burdening the clerks’ offices, the court may wish to add this provision: “At the time of requesting or responding to discovery, the parties shall ﬁle with the clerk a one-page notice indicating the nature of the discovery request or response.”
	3.	Coordination of discovery, including use of joint notices for common depositions, is often appropriate even if consolidation is not warranted.
	4.	This order provides for appointment of only liaison counsel for defendants while providing for appointment of liaison counsel, lead counsel, and a steering committee for plaintiffs. In many cases, of course, the same organizational structure for both plaintiffs and defendants will be appropriate.
	5.	To ensure that each liaison counsel has a complete file, copies of all documents should be served on both liaison counsel even if individual service is also to be made on other attorneys and parties. If the court directs under Fed. R. Civ. P. 5 that service on all opposing counsel may be made by serving liaison counsel, some additional time should be provided for liaison counsel to make distribution among those counsel and parties interested in a particular document.
	6.	The court should encourage the parties to discuss waiver of service of process as contemplated by Rule 4(d). If the parties agree, the court should include a version of the bracketed clause in an order. 
	7.	Note that Rule 23(c)(1) provides that the class certification decision need only be made at “an early practicable time.” The revised rule contemplates that the decision may come after rulings on Rule 12 motions and early motions for summary judgment.