What happens when more than 1,800 treble damages antitrust cases are filed in the federal courts against manufacturers of electrical equip. ment in a period of a couple of years? This is the problem the Judicial Conference of the United States faced in 1961. The story of how the problem is being met is told here authoritatively for the first time, with emphasis on uniform, nationwide pretrial procedures for the cases, which have common factual backgrounds.

SINCE JUNE, 1962, the federal ju

liciary has been conducting a unique program to co-ordinate discovery and ..ther pretrial procedures in the wellknown treble damage actions involv ing the electrical equipment industry. Much of the initiative and direction for this novel nationwide experiment in judicial administration has come :rom a committee of nine federal Fudges who developed and are carryng out the program. This article will describe the committee's organization nd the operation of the experimental retrial program.

In 1960 federal grand juries sitting Philadelphia returned a series of titrust indictments against manufacarers of electrical equipment and cerin of their employees. The indict

1. The alleged price-fixing conspiracies were subject of hearings by the Senate's SubTmittee on Antitrust and Monopoly. See. arings Before the Subcommittee on Antisto- Monopoly of the Committee on the dic United States Senate, 87th Cong., 1st as... 27 and 28 (1961).

2. In addition. the Tennessee Valley Authorinstituted suits based on its purchases.

courts but also the interests of the parties themselves suggested the desirability of some co-operation in the handling of the cases in the pretrial tages.

In response largely to the problems suggested by the pending mass of electrical equipment litigation, the Judicial Conference of the United States at its meeting in September, 1961, foted to create a special subcommittee of its standing Committee on PreTrial Procedures and Practices. The zew subcommittee was to be charged with "considering discovery problems arising in multiple litigation with comzon witnesses and exhibits". Thus, in creating the subcommittee the Jucial Conference indicated its belief that the problems of multiple related cases might extend beyond the immediate pressures of the electrical equipment cases and that the general problem merited sustained attention from the conference.

The new subcommittee, which has come to be known as the Co-ordinating Committee for Multiple Litigation of the United States District Courts, was appointed by Chief Justice Warren in January, 1962. Chief Judge Alfred P. 'urrah of the Court of Appeals for The Tenth Circuit, the chairman of the Conference's Committee on Pre-Trial Procedures and Practices, became chairman of the new Co-ordinating Committee. The other members of the committee are eight district court judges: Sylvester J. Ryan (C.J., S.D. V.Y.), Thomas J. Clary (C.J., E.D. Pa), Roszel C. Thomsen (C.J., D. ML), Joe E. Estes (C.J., N.D. Tex.), William M. Byrne (J., S.D. Cal.), George H. Boldt (J., W.D. Wash.), Edwin A. Robson (J., N.D. Ill.) and William H. Becker (J., W.D. Mo.).

The committee held its first meeting the following month in Philadelphia. After hearing reports on the olume and progress of the electrical equipment cases, it decided to direct its initial efforts toward developing a proam for co-ordinating the pretrial ges of the cases. It identified three kinds of measures it might undertake: i devise means to facilitate comunication among the judges before m the litigation was pending; (2) commend that each of the courts as

sume control of pretrial matters in the cases pending before it, as suggested by the Handbook of Procedures for the Trial of Protracted Cases and (3) develop suggested uniform pretrial procedures designed to avoid repeti tious and overlapping discovery.

The absence of a provision in the statutes or rules to require a co-ordinated program was recognized at the outset, and it was agreed that all action should be directed toward obtaining the voluntary co-operation of the judges concerned. To this end the committee invited all the judges before whom electrical equipment cases were pending to a meeting held in Philadelphia on March 22, 1962. Many of the twenty-five district judges who attended were frankly skeptical that a program of co-ordination could be carried out successfully. Nevertheless, the

group encouraged the Co-ordinating Committee to make the attempt by adopting the following resolution:

RESOLVED, That a committee composed of the present members of the subcommittee, and such others as may be desired, be appointed by the chair to suggest ways and means of handling the electrical antitrust cases, from discovery through pretrial, and that it be the sense of this meeting that a plan for co-ordinating discovery procedure and expediting rulings on key legal questions, as well as a means for disseminating information, be devised and submitted to the trial judges involved at the earliest practicable time; and that in the meantime, procedures leading toward the securing of infor mation needed for ultimate disposition of the litigation be followed, as nearly as practicable, by each individual judge.

This action by the judges individually responsible for the electrical cases laid the foundation for the program which was developed. Since that meeting the Co-ordinating Committee has functioned in part as a kind of executive committee for the judges assigned to the electrical equipment cases.

The judges from the thirty-five districts in which suits were filed have continued to meet periodically to ex change information about the progress of the cases in their respective districts and to discuss common problems with each other and with the members of the Co-ordinating Committee.

Initial Steps

in Co-ordination

At meetings of the Co-ordinating Committee in Norfolk, Virginia, in April, 1962, and in Chicago the following June, the initial stages of a program were agreed on. Recommendations to the district judges following these meetings set the program in motion. The first important step taken was the entry in practically all the pending cases of pretrial orders conforming generally to a set of seven pretrial orders recommended by the Coordinating Committee. These based on orders which had already been entered by Chief Judge Sylvester J. Ryan in the cases pending in the Southern District of New York.

were

This initial set of pretrial orders, corresponding to the orders now identified as National Pretrial Orders Nos. 1 to 7, accomplished several important objectives.9

First, they secured control of discovery in the district courts. Interrogatories previously served by any party were vacated; depositions previ ously noticed were stayed; all further interrogatories and depositions were made subject to further orders of the court. General acceptance of the prin ciple of court-controlled discovery was essential if the courts were to have an opportunity to co-ordinate discovery procedures.

7. Letter of Chief Justice Warren, January 26, 1962, to Judge Edwin A. Robson.

8. 25 F.R.D. 351 (1960). adopted by the Judicial Conference of the United States, March, 1960.

9. These and many of the subsequent national pretrial orders that have been recommended by the committee for entry in the electrical cases are reported in 2 BENDER'S FEDERAL PRACTICE FORMS, 440.35 et seq.

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Second, these initial pretrial orders initiated the co-ordinated discovery. They prescribed two important sets of uniform interrogatories appropriate for all cases. One set was to be answered by plaintiffs and the other by defendants. From the plaintiffs these interrogatories called for "purchase identification data", intended to provide the defendants with full information about the transactions as to which the plaintiffs claimed damages. From the defendants the interrogatories sought comprehensive information about meetings and communications among competitors, the personnel of the defendants who had been involved in such activities and the pricing practices of each defendant.

Third, early determination of certain issues of law affecting large numbers of cases was encouraged by setting up a schedule for filing and hearing motions raising objections to the complaints.

Fourth, the initial pretrial orders provided a formal basis on which cases might, by consent of the parties, be placed in an inactive status without risk of later disrupting the co-ordinated

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pretrial proceedings. Shortly many of the pending cases were placed in this stand-by category.

Much of the later success of the coordination program was due to the fact that the first group of recommended pretrial orders came before proceedings were well advanced in most districts and appealed to almost all the judges as a desirable foundation for further pretrial steps. The procedure generally followed was for the judge in each district to direct the parties in all the cases before him to show cause why an order in the recommended form should not be entered. The individual hearings on these orders produced objections to some of the provisions and led to variations in the details of the orders, but the pattern of conformity was sufficient to accomplish the committee's objectives.

National Pretrial
Hearings and Orders

As judges and counsel gained experience in the program, improved procedures were developed for formulating proposed orders and for consid

ering objections in advance of the committee's recommendations. One interesting device which has emerged and has been used frequently in later stages of the program is the national pretrial hearing. The hearings have usually been held following meetings of the Co-ordinating Committee or of all the judges assigned to electrical cases, and they have generally been attended by large numbers of lawyers for plaintiffs and defendants.

At the hearings representative counsel from each side present to a group of judges their comments on and objections to steps proposed by the committee. The judges then confer and announce tentative conclusions, after which the counsel present are afforded a further opportunity to make sugges tions, objections and argument. Often the judges' recommendations have been stated in general terms and counsel have then been requested to meet with a smaller group of the judges to draft the specific terms of the suggest. ed order. When the proposed order is in a form approved by the committee, it is circulated to all the districts in which electrical equipment cases are pending with the recommendation that it be considered for entry in all cases.

Appropriate local proceedings are then held to consider additional objections of the parties and to enter an or der the individual judge deems proper. Only the local proceedings are normally part of the official record of a case. although occasionally transcripts of national hearings have been incorporated by reference into the local record on request of the parties or at the initiative of the judge.

By March, 1964, thirty-seven national pretrial orders had been recommended by the Co-ordinating Commit. tee. A substantial portion of these, however, related only to certain socalled priority product lines to which the committee decided to give preferential treatment after a certain point in the pretrial proceedings had been reached, as will be explained below.

Staff Support

for the Committee

The committee recognized at the outset that the execution of a program would require administrative assist

r

ance beyond that available to each of the various district courts handling the electrical cases. A vital early step

en was to establish a special inforion center to collect information concerning the status of all the pending cases, report regularly to the judges on the developments in the cases, as

in the scheduling of and prepara::n for meetings of the committee and e disseminate the committee's reports. This center was centrally located in the Northern District of Illinois. Its

ce there, adjoining the chambers of judge Edwin A. Robson, serves as a radquarters for the Co-ordinating Committee's day-to-day operation.

The committee's full-time staff now consists of an administrative assistant, a research attorney, a secretary, two tenographers and a docket clerk, who perate under Judge Robson's direcition and in consultation with the Executive Secretary. The work of the office includes publication of the committee's own loose-leaf service for the district judges presiding over electrical equipment cases. This publication, which i now consists of three large volumes urth will be added shortly), proan up-to-date set of the national pretrial orders, periodic bulletins reporting the committee's action and ther developments, statistical tables, a digest of rulings in the cases, and a daily summary of the first trial in the lectrical litigation.10

National Depositions

Early in the discussions of the conmittee some members urged the view hat a central part of any program -hould be an effort to eliminate repetive depositions and conflicting demands for the presence of key witsses. The suggestion made was that e committee should ascertain the umes of key witnesses likely to be portant in most cases and arrange r them to be examined in joint depotions participated in by all interested

It was also suggested that positions of this kind should be preled over by a judge because of the ide effects of a single deposition and

ed for prompt, decisive rulings matters of privilege and relevance insure maximum effectiveness of the amination.

A subcommittee was appointed to consider the problems involved and it invited suggestions from counsel. At a meeting in August of 1962 of all the judges presiding over electrical equip ment cases, it was agreed to press forward with the effort to arrange a national deposition program. Meanwhile, depositions in individual cases would be stayed until the possibilities had been fully explored.

Immediately the subcommittee held a joint meeting with a large group of counsel on both sides of the litigation. There was general agreement to co-operate, and from this meeting emerged the broad outlines of an experimental deposition program. The plan was that plaintiffs should have the right to select the witnesses to give depositions in the initial round. The subcommittee stipulated that each plaintiff desiring to examine a witness should have the opportunity to do so, either by participating on a committee responsible for the examination in chief or by supplemental examination.

The proposal obviously depended in considerable part on the ability of counsel, particularly on the plaintiffs' side, to organize themselves for effective co-operation. This condition was realized at a meeting of approximately eighty attorneys representing plaintiffs held in Chicago early in September, 1962. Agreement was reached on the names of twelve witnesses, present or former officers or employees of the defendants, who would be examined first. These witnesses were expected to provide information relating to four important product lines involved in the suits. In addition, the plaintiffs' counsel present at this meeting agreed to delegate to a steering committee named by them the task of proposing detailed ground rules for the examination, arranging a schedule of dates and places and working out other problems of the deposition program.

From this point on the entire coordination program was greatly aided by the existence of this committee.11 Besides bringing together the various ideas of plaintiffs' counsel and presenting a generally unified viewpoint to the judges, the plaintiffs' steering com. mittee has managed important mechanical details of the program, such as the

printing, filing and distribution of the voluminous transcripts of the plaintiffs' national depositions. The defendants' counsel have co-operated at least as well, but because of the much smaller number of parties involved the same problems of organization have not been encountered.

The national deposition program was launched by the entry of National Pretrial Order No. 8 in September, 1962. Senior Judge William H. Kirkpatrick (E.D. Pa.) presided at the first deposition which began October 1, 1962. Although more than 150 lawyers were present, no serious difficulties were encountered in completing the examinations in an orderly manner. For the most part interrogation was left to lead counsel selected in advance by the respective litigating groups. Prompt rulings on several important questions of privilege and on other matters were made possible by the presence of a judge, as presiding officer at the deposition, thus obviating delays which might otherwise have occurred. By early December the twelve initial witnesses had been examined.

The theory of national depositions was that each deposition would be available for use in accordance with Rule 26(d) of the Federal Rules of Civil Procedure by or against any party to any of the pending electrical equipment cases who had been present or represented at the taking of the deposition, or who had notice as provided by the pretrial order scheduling the depositions. Since National Pretrial Order No. 8 (and subsequent orders scheduling later rounds of depositions) was entered in most, if not all, the actions pending throughout the country, the potential utility of each deposition was wide.

10. Philadelphia Electric Company v. Westinghouse Electric Corporation, Civil Action No. 30015 (E.D. Pa., 1961).

11. Charles A. Bane of the Chicago Bar was designated chairman of the steering committee which, in addition, consisted of Joseph L. Alioto, San Francisco: Robert W. Bergstrom, Chicago; Walter M. Clark, St. Louis; Thomas C. McConnell, Chicago: Northcutt Ely, Washington, D.C.; William H. Ferguson, Seattle; Harold H. Fisher, Newark; Milton Handler, New York: Harold E. Kohn, Philadelphia: Horace R. Lamb; New York: Marcus Mattson. Los Angeles; Brice W. Rhyne. Washington, DC.; Robert E. Sher, Washington, DC; Seymour F. Simon, Chicago; Gilmore Tillman, Los Angeles; and Bethuel M. Webster, New York.