Parties involved in coordinated proceedings featuring thousands of plaintiffs and a tight discovery schedule are expected to negotiate an efficient process for production of baseline data. The Plaintiff Fact Sheet (PFS)/Defendant Fact Sheet (DFS) process provides an orderly procedure for discovery specific to plaintiffs and their prescribing/treating physicians.
For the DFS, the overall goal of the parties should be to establish a uniform, repeatable process to handle the production of the most important individualized information to a large number of plaintiffs in a reasonable amount of time. Defense counsel must also manage the cost and burden to their client. Following these five guiding principles will help both parties achieve these goals.
- PFS sufficiency
The parties should focus on requiring a PFS with sufficient information to trigger a DFS. Among other things, the PFS should include complete, accurate names for each individual physician (not just facilities) and at least a city and state for each physician. This will make the DFS search process easier and ensure the defendants are providing complete information for the correct physicians.
- Phasing
The initial DFS process is not a mechanism to provide all discoverable information for every plaintiff, but rather to provide sufficient information for the parties to evaluate the individual cases and select ones to move forward for further discovery. Once a plaintiff serves a sufficient PFS, defendants should produce a DFS focused on the most accessible and most important information specific to the plaintiff and the plaintiff’s physicians. Searches of more burdensome and tangential data sources should be deferred to a later time for a smaller group of bellwether or trial cases. This approach is beneficial to both parties, as the defendants can provide a DFS for a larger number of plaintiffs in a shorter period of time when the process is not bogged down by requirements to include less accessible data sources at this stage.
- Defined scope
In all cases, limiting the total number of physicians per plaintiff for a DFS search process reduces the overall burden and shortens the production timeline. The utility of other parameters may vary from case to case. For example, depending on how data sources are structured, it may be either significantly easier or significantly harder to limit the productions to data related to the product at issue. Also, a plaintiff-specific date cutoff for the DFS information is a standard procedure, but a uniform date cutoff for an entire group of cases can make the process easier to manage. The parties should work together to develop parameters that are most suitable for a particular case.
- Language precision
Broad or imprecise language in the DFS agreement can create both unforeseen obligations and misunderstandings later. The parties should avoid vague, sweeping commitments like “produce all communications.” Instead, the parties should identify specific data sources so obligations and processes are clear.
- Logistical efficiencies
The parties should focus on the mechanics of the process to promote efficiency. Consideration of the following logistical issues up front will smooth the way.
One approach is to set up the DFS form to provide substantive narrative responses. Another approach is to provide minimal information in the form but rely on more extensive document productions. One or the other of these approaches may be more appropriate for any particular case – but a requirement to do both slows down the process.
Defendants should consider retaining an e-discovery vendor to host comprehensive database exports from the applicable systems and to run the searches for individual physician names. This approach can centralize responsibilities and minimize the burden to the defendants’ business and IT personnel over the long run when there are large numbers of plaintiffs.
Other considerations include selection of the document production format, method of service, and Bates prefix scheme for easy tracking.
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Proactively addressing all these issues early in the discovery meet-and-confer phase will help ensure a sustainable mechanism for the efficient and timely exchange of plaintiff-specific information, and will help manage the cost and burden to the defendants.
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