Search this and you get case management orders. Nine of them, from nine different MDLs, and not one vendor page. The firms that do this work do not advertise it, which tells you something about how it gets staffed.

A bellwether is tried like any other case, except that the record behind it was built for a thousand cases at once. Pulling one trial package out of a common depository is a different exercise from assembling a trial package from a single file.

What makes it structurally harder

• The population is enormous and most of it is irrelevant to this plaintiff. The work is extraction, not collection.
• The general-liability record is shared across every case; the case-specific record belongs to one plaintiff. The trial set has to merge both without losing which is which.
• Exhibit numbering has to work across multiple bellwethers. A numbering scheme built for the first trial and then abandoned creates a cross-referencing problem in the second.
• Deposition designations run to thousands of lines across dozens of witnesses, with objections and counter-designations tracked against each.
• The same exhibit gets used in several bellwethers with different confidentiality treatment depending on what the court has unsealed by then.

The orders set the mechanics

Bellwether procedure is governed by case management order, and the orders are specific. The Xarelto MDL in the Eastern District of Louisiana ran its bellwether process under CMO 2 and its amendments. The Cook Medical IVC filter MDL in the Southern District of Indiana used CMO 19 and CMO 27. Those documents, not a vendor’s house process, define what the trial package is.

Which means the first deliverable on any bellwether is a read of the governing order against the current state of the depository, and a list of what does not yet exist.

Where it goes wrong

Three failures recur.

The exhibit list and the exhibit set disagree. Somebody maintains the list in a spreadsheet while somebody else maintains the documents, and by the pretrial conference they have diverged. The list is what gets filed, so the divergence surfaces in front of the judge.

Confidentiality designations go stale. A document produced under seal three years ago may have been unsealed since, or a protective order may have been modified. Carrying forward the original designation is the safe-looking error that limits what you can use at trial.

And deposition designations are tracked in a document rather than a database, so no one can answer what the net admissible testimony actually is after objections.

What we do with it

• Read the governing CMOs and build the trial package to them rather than to a template
• Extract the case-specific record for this plaintiff while keeping its relationship to the general record intact
• Maintain the exhibit list and the exhibit set as one reconciled object, not two
• Re-verify confidentiality designations against the current protective order before anything goes in a binder
• Track designations, objections and counter-designations in a structure that can report net admissible testimony
• Build the numbering convention to survive the second and third bellwether
• Produce the physical sets — witness, chambers, counsel table and clean copies

What we do

Pro-Legal Services, Inc. prepares bellwether trial packages from Arlington, Virginia — built to the governing case management orders, extracted from the common record without losing provenance, with the exhibit list and exhibit set reconciled and designations tracked as data.

Small business, minority-owned, SAM registered. Document management, reprographics and exhibit work in one building.

Pro-Legal Services, Inc. supports trial teams from Arlington, Virginia, for MDLs and coordinated proceedings in federal courts nationwide.

Bellwether set for trial and the depository is somebody else’s? Send us the CMOs and the exhibit list. The reconciliation is the first thing worth doing. Pro-Legal Services, Inc. · 1550 Wilson Blvd, Suite 250, Arlington, VA 22209 · 202-955-9400 · info@pro-legal.com