Mass Tort Defense : Mass Tort Defense Lawyer & Attorney : Sean P. Wajert : Dechert Law Firm : Products Liability, Class Actions, Pharmaceutical Litigation

Readers of MassTortDefense are aware of the significant risks that plaintiff e-discovery tactics pose in product liability and toxic tort contexts. Rather than a device to uncover relevant facts for the litigation, e-discovery often is about plaintiffs’ attempt to find some alleged misstep by the defendant that will bring sanctions.

In multi-district litigation arising out of the manufacture of allegedly defective plumbing fittings, the U.S. District Court for the District of Minnesota recently ordered the defendant to name a witness to be deposed on whether it preserved evidence dating back to its notice of likely litigation, before a putative class suit was filed. In re: Zurn Pex Plumbing Products Liability Litigation, D. Minn., MDL No. 08-1958.

Plaintiffs allege that the defendant erred in its document preservation efforts three years before any litigation was actually filed, claiming that the number of warranty claims to the company somehow triggered a duty to preserve. However, in late October 2007, the parties were ordered to engage in focused discovery on the issue of class certification, and discovery of electronically stored information was limited, absent a showing of easy accessibility at an affordable cost.

Plaintiffs moved to compel a Rule 30(b)(6) deposition and identification of a 30(b)(1) deponent as they sought to depose a corporate representative regarding document retention practices and possible spoliation of evidence. Defendant resisted, arguing that plaintiffs have no reason to believe evidence has been destroyed; the requests are unreasonably burdensome; and the requests violate the prior discovery orders.

The court, however, permitted the deposition limited to determining whether discoverable evidence had been inadvertently destroyed. The court noted that case law requires plaintiffs to designate, with painstaking specificity, the particular subject areas that are intended to be questioned, and that are relevant to the issues in dispute,” but found somehow that plaintiffs had done so by "circumscribing" their request to information concerning the identified risk of litigation for Zurn Pex, Inc. with respect to its brass fittings.

Yet another cautionary tale from the world of ESI.  It is crucial for defendants to retain counsel who can assess and advise on the e-discovery issues.

• Email This
• Print
• Comments
• Trackbacks

Congress has passed and sent to the President a bill that amends the Federal Rules of Evidence with respect to the disclosure of a communication or information covered by the attorney-client privilege or work product protection. The bills S. 2450/H.R. 6610 limit the effect of inadvertent disclosure of privileged materials. The Senate passed S.2450 in February, 2008, and the House passed the identical H.R. 6610 last week.

One unfortunate aspect of the new e-discovery rules has been a tremendous cost due to the need to review ESI, particularly emails, to make sure that privileged information is not given to the other side. Mass tort defendants, in particular, must often sift through a mountain of documents to ensure that privileged material is not inadvertently released. While most documents produced during discovery have little value, attorneys must still conduct exhaustive reviews to prevent disclosures of the needle in a haystack that reveals confidential information. The cost to litigants is staggering and the time consumed by courts to supervise these activities can get excessive.

The bill impacts this problem not by changing the law on the attorney-client privilege or the work product doctrine, but by modifying the consequences of an inadvertent disclosure once a privilege exists, through creation of new Federal Rule of Evidence 502. The federal rules committees studied this problem in connection with various proposals to change the discovery rules. The rules committee concluded that the need for exhaustive preproduction privilege reviews could be significantly reduced if the risks of waiver were clarified and limited, and thus recommended the bill’s changes.

The bill provides that, in new Rule 502(a), when a disclosure is made in a federal proceeding (or to a federal office or agency), and that disclosure waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together. When the disclosure is made in a federal proceeding (or to a federal office or agency), under new Rule 502(b), it does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error. 

Maybe a small step in the right direction.
 

• Email This
• Print
• Comments
• Trackbacks