This is the sixth and final article in a series about managing asymmetrical litigation. The first article described these David versus Goliath situations and some of the unique issues that they present. The second, third and fourth articles provided strategies for avoiding or controlling discovery and document production, and the fifth article discussed managing plaintiffs and discovery disputes. This article considers issues raised in multi-defendant actions, which present special challenges and opportunities for Goliath-sized defendants in asymmetrical litigation against small, non-practicing plaintiffs.
Even when they don’t share counsel, the defendants should enter into a joint defense/common interest agreement as a first order of business. Such agreements allow for the sharing of work product and privileged information, without waiving attorney client privilege and work product immunity, and are necessary for any level of meaningful cooperation and coordination. While there are myriad variations, a streamlined approach makes most sense. Such an approach :
- Allows for the confidential exchange of information,
- Clearly delineates what can be shared and what, if anything, must be shared,
- Addresses potential conflicts of interest
- States what happens if a defendant withdraws from the group or settles with plaintiff, but otherwise avoids excessive complications
Managing a joint defense group can sometimes be like herding cats, with each defendant wanting to go in its own direction. Clients and their counsel may have differing strategies, and it can be necessary to remind co-defendants that healthy compromise may be necessary to get everyone rowing in the same direction. For example, in the patent litigation context courts typically adopt a plaintiff’s proposed claim construction where defendants cannot agree on a single construction. Thus, a construction that all defendants can live with and that preserves the best defenses is preferable to pursuing a marginally better construction to which not all defendants will agree. It is a good practice to hold regular meetings or telephone conferences to coordinate tactics, and to allow ample time to negotiate compromises.