How Much is too Much? Counsel’s Active Conduct in Asbestos Suit Results in Forfeiture of Jurisdictional Defense

By and on June 9, 2016

Since the jurisdictionU.S. Supreme Court handed down Daimler AG v. Bauman 134 S.Ct. 746 (2014), personal jurisdiction defenses have experienced a renaissance in asbestos litigation.  Defendants that wish to win such arguments, however, are well advised to heed a recent ruling by Judge Gibney, who presides over Rhode Island’s state court asbestos docket.  In Bazor v. Abex Corporation et al., C.A. No. PC-10-3965 (R.I. Super. May 2, 2016), Judge Gibney issued a ruling that is instructive on what a defendant must do to preserve its right to contest jurisdiction, holding that a defense counsel’s “active conduct constitute[d] forfeiture of the defense of lack of personal jurisdiction.”  The court referred to “forfeiture” as opposed to “waiver” because the defendant had properly asserted the lack of personal jurisdiction as a special defense.

In this instance, the “active participation” included the following conduct during the two years and nine months between the filing of an answer and the motion to dismiss: filing an objection to the trial date, attending a plaintiff’s deposition, requesting and participating in the reopening of that deposition, participating in the deposition of the plaintiffs’ expert, objecting to the expert’s deposition on non-jurisdictional grounds, disclosing eight  expert witnesses, filing 15 motions in limine, supplementing its expert witness disclosure, producing two expert witnesses for depositions, responding to discovery (without preserving the defense of lack of personal jurisdiction), supplementing its expert discovery, moving to compel the production of the plaintiffs’ bankruptcy trust documents, and participating in at least ten status/settlement conferences.  In short, defense counsel’s very active participation in the litigation was so active so as to constitute “forfeiture” of a claim of lack of personal jurisdiction.

Looking to federal jurisprudence for guidance, the court focused on defense counsel’s litany of activity over several years.  Synthesizing federal decisions, the court identified two  principal elements to weigh to determine whether a defense of personal jurisdiction is forfeited: (a) the delay in asserting the defense; and (b) the “nature and extent” of the defendant’s involvement in the case.  The court noted that the first factor could be met by as little as four months’ delay; but reasoned that the second factor weighed more heavily than the mere passage of time.  With regard to the second factor, the court cited defendant’s filing of an appearance, participation in discovery, attending and taking depositions, and filing and opposing motions as evidence of active participation.  Notably, the court found that the defendant had created “substantial delay” without “a sufficiently meritorious reason” for failing to assert its defense for two years and nine months after the filing of its answer.  The level of participation appears to have been the deciding factor; with special attention brought to “the fifteen motions in limine [defendant] filed which sought merits-based rulings” and the failure to continually assert the defense throughout the course of litigation.  However, of concern is that the ruling did nothing to establish a “bright line” rule of precisely how much participation is “too much” so as to result in a forfeiture of a jurisdictional defense.

It is unclear where this decision leaves litigants who need to participate in early discovery and who also want to preserve their jurisdictional defenses.  Defendants who wish to maintain their defenses are faced with choosing from various interpretations of the Bazor decision, focusing on the assertion of their rights and carefully monitoring the level of their participation.  The decision could reasonably be read to indicate that a party may participate in discovery, but only if they continue to maintain and pursue their jurisdictional defense.  Alternatively, some parties may refuse to participate in non-jurisdictional discovery for fear of inadvertent forfeiture. This may create friction with plaintiff’s counsel when their clients are in poor health, which frequently occurs in asbestos cases across the country.  Ultimately, the lesson of Bazor may be that safest resolution for defense counsel will be to file and pursue dispositive jurisdictional motions as early in the case as possible.  At the very least, defense counsel should raise the defense in pleadings and discovery which precede the filing of the motion to dismiss on jurisdictional grounds and/or reach some sort of agreement with opposing counsel to prevent forfeiture despite some level of active participation in the case. For example, defense counsel in the asbestos litigation should obtain a stipulation that attendance at an exigent deposition does not constitute a waiver of personal jurisdiction arguments; and that stipulation should be placed on the record.

Filed under active participation, Asbestos, Daimler AG v. Baumann, Discovery, Federal Court Litigation, Jurisdiction, Litigation Issues and Factors, Toxic Tort/Product Liability Litigation

Evolving Rules on Discovery of Social Media in New York

By on April 22, 2016

Personal injury claimants routinely candidly discuss their personal injury travails and who might be responsible for those injuries on Facebook and other social media. They brazenly post photographs depicting exploits on jet skis, bicycles and other recreational equipment that serve to undermine their lawyer’s assertions of irreparable and disabling injury. How then can the defense obtain social media in discovery to defeat specious or exaggerated claims?

The difficulty of obtaining private social media information under New York state practice discovery rules is illustrated by Forman v. Hankin, 134 A.D.3d 529 (1st Dep’t 2015). Plaintiff Kelly Forman alleged that she sustained a serious brain injury as a result of falling off a horse, which left her unable to reason, find words, write or communicate effectively. The trial court acknowledged that photographs of plaintiff engaging in various activities after her accident, particularly activities she claimed she was no longer is able to engage in due to her fall, were of enormous probative value. Therefore, the court ordered her to produce any post-accident photographs on Facebook that did not depict nude or romantic encounters. Because of the cognitive injuries alleged, the trial court ordered plaintiff to provide an authorization to permit defendant to obtain records from Facebook, including archived or deleted records, showing each time plaintiff posted a private message and the number of characters or words in the text of each private message. Defendant was not permitted to obtain the content of the post-accident messages, but only a number or words or characters in the messages. Considering the allegations of injury, just being able to prove that plaintiff was using social media as a form of self-expression would be an accomplishment for the defense.

On appeal, the First Department modified the trial court’s order by vacating that portion of the order directing plaintiff to produce Facebook photographs she did not intend to introduce at trial and the authorization for Facebook records. Sadly, this ruling is consistent with rulings by other appellate courts in New York that require a defendant to make a threshold showing before permitting disclosure of social media no matter how compelling the need.

What then is the most effective strategy for defense counsel in New York to employ to obtain this information in light of Forman? First, the defendant must establish a prima facie showing of relevancy. At a minimum, this can only be accomplished by crafting a narrowly tailored request for information, such as a request limited to social media conversations concerning the claimed injuries. Alternatively, New York courts permit disclosure if defendant can establish that certain social media information contradicts the plaintiff’s claims. In Forman, the First Department held that the mere fact that plaintiff had posted pictures or sent messages did not sustain this burden. Defendant’s argument that the information sought could be relevant to rebut plaintiff’s claimed injuries was dismissed as a “fishing expedition”.

Correctly so, the dissent in Forman lambasted the majority’s requirement that a defendant only be permitted to obtain disclosure “if, and only if, the defendant can first unearth some item from plaintiff’s publically available social media postings that tends to conflict with or contradict the plaintiff’s claims.” This requirement presents defense counsel with a dilemma. If a defendant must produce for the court publically available information to establish a factual predicate to obtain private social media messages, how does defendant obtain that information in the first instance? Arguably, once a defendant has obtained publically available information undermining plaintiff’s claim, private social media disclosure may become superfluous.

What then are strategies that defense counsel can utilize to maximize the likelihood of obtaining discovery of private social media? First, it is axiomatic that a defense lawyer should search plaintiff’s name in as many social media platforms as possible to discover publically available information. For example, there are online search tools available to search for an individual twitter user’s history of tweets. Using these websites, defense counsel can insert the name of the product, the manufacturer of the product, and/or the particular type of product at issue into the search field and locate tweets, if any, referencing those terms.

Social media is of utmost importance in promoting a kids clothing company website that sells kids clothes and girl clothes. Platforms like Instagram, Facebook, and TikTok enable businesses to connect with a vast audience of parents and caregivers who are actively seeking fashionable and high-quality clothing options for their children. By utilizing social media, the company can showcase their products through visually appealing posts, share helpful styling tips, engage with customers through comments and direct messages, launch giveaways or collaborations with influencers, and ultimately drive traffic to their website.

Does the plaintiff post on a personal blog or message board? Certain message boards may be dedicated to the type of issues or damages being litigated. There may be online sites offering specifics relating to the claimant’s purported personal injury at issue in the litigation. Once information on a personal blog or message board is obtained, it may facilitate the drafting of a demand or a motion to require production of the requested private social media disclosure. Although it may take a little more effort than grinding out a form demand, a specifically tailored discovery request may have a greater likelihood of being upheld.

Finally, it is essential that defense counsel send a preservation letter to plaintiff’s counsel to avoid any altering of the privacy settings of the claimant’s social media profiles or otherwise taking down previously posted information.

Filed under Discovery, New York, social media

Will Cost-Shifting in the Newly Amended Federal Rule Shift the Landscape in E-Discovery Disputes?

By and on January 19, 2016

1-19We all know the long-standing general rule that a party must ordinarily pay its own costs to respond to discovery. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358 (1978). However, effective December 1, 2015, Rule 26 of the Federal Rules of Civil Procedure was amended to expressly address cost-shifting in discovery, a practice that has already been employed in many federal districts. Specifically, sub-section 26(c)(1)(B) was added to state that, when entering a protective order, a court may specify terms “including time and place or the allocation of expenses, for the disclosure or discovery[.]” (Emphasis added.)

One might infer that the express acknowledgement of cost-shifting in the Federal Rules is meant to signal a trend toward a general increase in cost-shifting orders. The Advisory Committee Notes, however, are quick to throw cold water on this idea, explaining that the amendment was designed only to recognize courts’ authority to order cost-shifting, and not to make cost-shifting the “new normal”:

Rule 26(c)(1)(B) is amended to include an express recognition of protective orders that allocate expenses for disclosure or discovery. Authority to enter such orders is included in the present rule, and courts already exercise this authority. Explicit recognition will forestall the temptation some parties may feel to contest this authority. Recognizing the authority does not imply that cost-shifting should become a common practice. Courts and parties should continue to assume that a responding party ordinarily bears the costs of responding.

Although the Notes say that the new amendment “does not imply that cost-shifting should become a common practice,” this does not necessarily mean that cost-shifting should not become more common than it is right now.

Before Rule 26(c)(1)(B), federal courts typically relied on two other provisions of the Federal Rules for authority to order cost-shifting. First, Rule 26(b)(2)(B), which provides that “[a] party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” This sub-section is limited to electronically stored information, and is further limited to information identified as “not reasonably accessible,” and neither of these limitations are contained in the new sub-section 26(c)(1)(B). Courts also used to rely on Rule 26(b)(2)(C)(iii), which was interpreted to permit cost-sharing if the court determined that “the burden or expense of the proposed discovery outweigh[ed] its likely benefit[.]” That sub-section has, however, been removed and replaced by the December 1, 2015 amendments.

Going forward, we anticipate that the addition of Section 26(c)(1)(B), which is worded less restrictively than either of its “predecessors” in Rule 26, will encourage more attorneys to seek cost-shifting in discovery, notwithstanding the Advisory Committee Notes explaining that the amendment is not meant to make cost-shifting “a common practice.” Currently, the keystone decision on cost-shifting in federal discovery is the Southern District of New York’s opinion in Zubulake v. UBS Warburg LLC,  217 F.R.D. 309 (S.D.N.Y. 2003). Under Zubulake, cost-shifting is only permitted if the requested documents are deemed “inaccessible”. This analysis is largely controlled by the manner in which the information at issue is stored, and whether it is available in a readable format. If the information is found to be inaccessible, then cost-shifting may be permitted under Zubulake, subject to an eight-factor balancing test, which considers:

(1) the specificity of the discovery requests; (2) the likelihood of discovering critical information; (3) the availability of such information from other sources; (4) the purposes for which the responding party maintains the requested data; (5) the relative benefits to the parties of obtaining the information; (6) the total cost associated with production; (7) the relative ability of each party to control costs and its incentive to do so; and (8) the resources available to each party.

This test is based, in part, on the language of Rule 26(b)(2)(C)(iii), quoted above, that has since been removed and replaced by a reference to Rule 26(b)(1), which, after the December 1, 2015 amendments, emphasizes the importance of proportionality in defining the scope of discovery:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resource, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed information outweighs its likely benefit.

(Emphasis added.) When the Zubulake decision was issued in 2003, the court essentially proceeded on the premise that cost-shifting would only be appropriate where the discovery requests at issue presented an “undue” burden or expense, which would only exist if the information at issue was “inaccessible,” and would then be subject to the eight-factor balancing test articulated above.

If Zubulake was decided again today, under the Federal Rules as amended on December 1, 2015, it is not clear that the Court would choose to impose the pre-requisite that cost-shifting can only be permitted where the information at issue is “inaccessible.” Further, the multi-factor test articulated by the court (assuming the court would still choose a multi-factor test, a trend that never seems to go out of style), would likely resemble the proportionality factors now articulated in Rule 26(b)(1). These changes to the analytical framework could point to the conclusion that cost-shifting is merited in a greater number of cases than previously ordered. This is especially significant in jurisdictions that have not yet adopted the Zubulake approach to cost-shifting or articulated a standard of their own.

In sum, while the authors do not expect the recent addition of Rule 26(c)(1)(B) to usher in a sea-change where the requesting party will typically be expected to shoulder some percentage of the responding party’s discovery costs, it is expected to increase the number of motions filed seeking cost-shifting, which should, in turn, increase the raw number of cost-shifting orders in federal discovery. Further, the recent amendments’ overall focus on proportionality could lead some courts to soften the analysis that they use to determine when cost-shifting is merited. The key takeaway for attorneys and defendants is that the practice of cost-shifting is now expressly acknowledged in the Federal Rules, and, while it may not become commonplace, it is certainly not going to become any less common.

Please click on the link below for more information about our related practice: E-Discovery

Filed under Cost-Shifting, Discovery

Some Pitfalls of the Newly Amended Federal Rules of Civil Procedure

By on December 9, 2015

The upcoming amendments to the Federal Rules of Civil Procedure contain a number of pitfalls for the unwary federal court practitioner. Just about the biggest mistake a practitioner could make in 2016 would be to use his or her tried and true discovery response template under the new regime.

For starters, it will now be a bad idea to respond to a Rule 34 document request by stating:

“Without waiver of or prejudice to these objections, Defendant produces the documents attached to this response.”

The recitation of this discovery mantra has maddened litigators and trial judges alike for years. The problem with this objection is that it does not communicate whether, having recited a litany of objections, the objector is producing all of its responsive documents or withholding documents pursuant to the objection. The amended rule seeks to address this uncertainty.

shutterstock_188181785Under the amended rule, the use of broad boilerplate objections that do not state whether responsive documents are being withheld subject to an objection is now prohibited. The amendment to Rule 34 now provides that objections have to be stated “with specificity.” Therefore, it is not enough to merely state that a request is overly broad or vague and ambiguous. It is now the obligation of the responding party to state, for example, that it will limit the search for documents or ESI within a given stated time period. Playing coy with the adversary by not communicating the scope of the production should no longer be acceptable.

Another new Rule 34 wrinkle is that a litigant may now serve a Rule 34 request in advance of the Rule 26(f) conference. Although the adversary’s time to respond to the Rule 34 request will not start to run until 30 days after the conference, the early service of a document requests provides the parties the opportunity to discuss document production issues prior to the Rule 26(f) conference, if possible, but certainly before the Rule 16 conference. Being able to discuss document production issues at an early stage in the litigation can avoid discovery disputes later on, particularly if the court weighs in on some of the issues under discussion at the Rule 16 hearing.

Litigation Tip. From a defense perspective, keep in mind that plaintiffs will be on the lookout for defendants’ responses that do not contain the requisite specificity. The flip side is that if defense counsel specifies the basis for an objection and makes a limited production, the plaintiff runs the risk of waiving his objection to the limited scope of the production if he fails to act with alacrity.

The 2015 amendments to the Federal Rules of Civil Procedure amend Rules 1, 4, 16, 30, 31, 33, 34, 37 and 55. Rather than tackle all of the amended rules in a single article, this will be a continuing series of articles about the new regime and how practitioners can avoid compliance pitfalls.

Filed under Discovery, Federal Practice, Rule 34

An Enticement to Double Recovery?

By and on April 15, 2014

CALIFORNIA COURT REFUSES TO ALLOW POST-VERDICT SETOFFS OF POTENTIAL BANKRUPTCY TRUST CLAIMS

Evidence of claims by plaintiffs to asbestos bankruptcy trusts is critical to the defense of any asbestos case. In California, for example, Volkswagen of America Inc. v. Superior Court (Rusk) (2006) 139 Cal.App.4th 1481, highlighted the importance of the discovery of such claims for purposes of setoffs and establishing a defendant’s proportional share of damages.

Volkswagen held that “[s]ince each party who shares responsibility for any asbestos-related disease from which a claimant suffers is liable only for its proportionate share of noneconomic damages, each will understandably be concerned to determine whether the claimant has overstated its share of responsibility.  . . . The number of days and the conditions under which a claimant was exposed to the asbestos-containing materials of one responsible party bears directly upon the extent of the liability of the others. Each therefore will have very good reason to compare what a claimant has said in this regard in supporting a claim against another responsible party.”

Perhaps recognizing the uphill battle they face in protecting such claims from disclosure in discovery, plaintiffs in the litigation have modified their tactics. Instead of making claims to the asbestos bankruptcy trusts prior to or during litigation, many plaintiffs now wait until after their civil case has settled or gone to trial to make these claims. The purpose is deception and double recovery. If no claims have been made, there is nothing to discover, and therefore nothing to offset against a plaintiff’s verdict. So what is a defendant to do?

Paulus v. Crane Co., No. B246505 (2/21/14) considered an appeal that presented two issues, one of which was whether the trial court erred in not reducing the damages awarded against defendant Crane Co. to account for settlements plaintiffs could obtain from asbestos bankruptcy trusts, but had not at the time of trial. The trial court’s decision was affirmed.

Crane argued that California Code of Civil Procedure section 877 and the court’s broad equitable powers gave it the authority to offset potential claims. In just a single page of analysis in the 15-page decision, Paulus focused on the language of 877 restricting setoffs to settlements given “before verdict or judgment,” and further found that the court’s equitable powers did not give it the power to modify a judgment for a settlement that “may or may not be sought.”

Of particular concern was the court’s rejection of Crane’s argument that refusing a setoff in this case was tantamount to permitting a double recovery, finding that “[i]f a later settlement subsequently allows plaintiff a double recovery, that does not retroactively make the instant judgment improper.” (emphasis in original) Paulus also rejected Crane’s argument that plaintiff’s failure to obtain available settlements constituted failure to mitigate damages, holding that the duty to mitigate is a matter to be decided by the fact finder at trial, and “not something to be raised on new evidence after judgment.”

A step backward from Volkswagen?

The abbreviated discussion of the bankruptcy trust issue in Paulus masks the significance of its holding, which is effectively that so long as a plaintiff waits to make a bankruptcy trust claim, he may double recover at will.  Although Paulus may be technically correct that California Code of Civil Procedure 877 says “before judgment,” it gives short shrift to the court’s broad equitable powers, giving a ruling that is effectively form over substance and frustrates the Volkswagen court’s policy aims of ensuring that plaintiffs are not permitted double recovery.

Lessons from Paulus

After Paulus, a defendant would be well advised to look carefully at a plaintiff’s work history in a pending action, and proffer appropriate evidence to the trier of fact relating to claims that could be made but were not.

This is not the first time courts of appeal have failed to award offsets to defendants in asbestos cases, where defendants have not had evidence about future settlements in asbestos cases. See Garcia v. Duro-Dyne 156 Cal.App.4th 92 (2007). Recent efforts by defendants have shown that pursuit of discovery about exposure to bankrupt entities’ products during the case has led to inconsistent claiming patterns.

Defendants can and should make efforts to obtain their own affirmative evidence, rather than rely on the “goodwill” of the court on what might happen. This evidence can support affirmative defenses such as mitigation of damages, or affirmatively support claims for offset, and make it harder for trial courts and courts of appeal to turn a blind eye to these practices.

Filed under Asbestos Bankruptcy Trust, Damages, Discovery

Defense Lawyers: Keep This Decision In Your Back Hip Pocket

By on December 7, 2012

Having now completed discovery, you have provided the client with a thorough assessment of its potential liability exposure in the case. You are set for trial.

On the eve of trial, plaintiff’s counsel serves notice that it plans to call four eyewitnesses and an expert, and introduce 18 photos and a video, none of which were provided pursuant to your earlier discovery demand or a subsequent Preliminary Conference Order. As any trial lawyer like criminal lawyers Melbourne who practices in the Second Department can attest, this is not an unfamiliar scenario. But what is exasperating is the trial judge’s denial of defendant’s motion to preclude the untimely evidence from coming in at trial and effectively places the court’s imprimatur on plaintiff’s bad behavior, and assault, so it was important to get the right lawyer for this, and there are easy to find at sites like www.denvercocriminaldefenselawyer.com/assault/.

Given the widespread tendency by some Second Department trial judges to “cut  slack” for those who repeatedly flaunt the court’s rules regarding timely disclosure, it was refreshing to review the decision of the Appellate Division, Second Department, in Arpino v. F.J.F. & Sons Electric, 2012 NY Slip Op 08271, 201-02636 (12/5/12) which held a Long Island law firm responsible for its “intentionally false and misleading” responses to discovery demands, which the Court held could not be cured by belated disclosure.

In the interest of full disclosure, it was the defendant who committed the wrongful conduct in Aprino, not the plaintiff. However, because this is a “defense blog”, we will discuss the importance of the Court’s holding from a defense perspective. Needless to say, the conduct at issue is reprehensible and sanctionable no matter which side commits it. If you’re from Sydney and looking for a lawyer, we highly recommend criminal lawyers Sydney.

As reported by the New York Law Journal on December 6, 2012, the Second Department cited Court of Appeals case law to the basis for its ruling.  The Court stated:  “As the Court of Appeals has noted, the failure of attorneys to comply with court-ordered deadlines has increasingly become a problem in our court system.”  Further, the appellate panel stressed that the Court of Appeals had previously found  that “chronic and incompliance with deadlines breeds disrespect to the dictates of Civil Practice Law and Rules” and stressed that court orders cannot be ignored with impunity. On the strength of these admonitions from the the state’s highest court, the Second Department ruled that Suffolk County Supreme Court Justice Paul Baisley, Jr. had improvidently exercised his discretion in declining to sanction the defendant’s law firm from professionals at sites like https://www.stoneinjurylawyers.com.

The underlying facts of this auto accident case are fairly straight forward.  In June 2008, the defendants’ Ford Explorer collided with the plaintiff motorcyclist, who alleges that he sustained serious injuries in the accident.  Shortly after commencing an action against the Ford Explorer’s driver and his employer, plaintiff served a discovery demand seeking production of information and accident photos. Thereafter, this discovery was further directed in a Preliminary Conference Order. After missing the deadline for disclosure, a paralegal at the defendants’ firm advised by letter that defendants neither processed photos nor were aware of additional witnesses. This turned out to false.

In its decision, the Second Department rejected the defendant law firm’s claim that it was merely careless. To the contrary, it held that the firm’s responses were “intentionally false and misleading, and were interposed for the purpose of avoiding the defendants’ obligation to provide timely and meaningful discovery responses. The defendants neglected a court-ordered deadline and misrepresentation of the knowledge of possession of clearly discoverable material and information, without providing any excuse for doing so must be deemed willful and contumacious.”

Significantly, the Second Department held that the failure to comply with “basic rules governing compliance with disclosure orders cannot and will not be tolerated in our courts.” Unfortunately, all too often, trial courts not only tolerate and excuse this behavior to the extent that it has become almost accepted practice to “hide the ball” until immediately prior to trial. As a result of limitations placed on the defendants by the appellate court’s modification of the trial court’s order, substantial prejudice to plaintiff was prevented and appropriate sanctions imposed.

It is worth noting that plaintiff’s counsel was diligent in pursuing discovery throughout.  This is not a case where plaintiff arguably could have been more diligent in pursuing disclosure.

Therefore, printout a copy of Aprino, slip it into your back hip pocket, and pull it out in court the next time you find yourself in this situation.

Filed under Aprino, Arpino v. F.J.F. & Sons Electric, CPLR 3126, Discovery, New York Law Journal, New York State Litigation, Preclusion, Preliminary Conference Order, Sanctions, Second Department Tagged with

No Interlocutory Appeal To Protect Attorney-Client Privileged Documents

By on December 9, 2009

The United States Supreme Court yesterday held, in Mohawk Industries, Inc. v. Carpenter, No. 08-678, that a party may not immediately appeal court discovery orders that require the disclosure of documents and information covered by the attorney-client privilege.  This holding resolves a split in the circuits and will change the law in at least the DC and Ninth Circuits. The unanimous Court rejected the argument that attorney-client privilege disclosure rulings are different from other kinds of orders because once the privilege is lost, it cannot ever be restored. The Court (in Justice Sotomayor’s first opinion) noted that the ultimate remedy lies in reversal and a new trial at which the materials at issue would not be disclosed. Justice Sotomayor stated:

"The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Postjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege."

This is not a particularly revolutionary decision. After all, the Court has, for several terms, been narrowing interlocutory appellate rights as, at the same time, also requiring specific pleading (see, e.g.,Ashcroft v. Iqbal) in an effort to reduce expensive litigation proceedings. Moreover, at oral argument in the case, the primary issue came down to whether the attorney-client privilege was sufficiently important to warrant interlocutory appeal when balanced against the policy interests of the finality rule. Why, the justices asked, should the attorney-client privilege be given greater deference than trade secrets, for example?  My D.C. partner Stuart M. Gerson notes that for practitioners, both litigators and others who may be involved in investigations later subject to litigation, the significance of this holding is that heightened attention should be given to how privileged information is recorded to minimize the impact if that information is later disclosed. As a safeguard against disclosure, Stuart adds, experienced litigators and investigators tend to write cryptically and briefly, if at all, when they take notes. If one is inclined to take the formal statement of a witness to lock him or her into a particular rendition of fact, it should be done with the expectation that the statement very well may ultimately be disclosed, even if the statement is made in the context of an Upjohn investigation. Of course none of this changes the prevailing rule that attorney-client privilege can only be overcome upon a showing of critical necessity. However, courts dislike privilege and frequently misapply the law.  So, be careful out there.

Filed under Ashcroft v. Iqbal, Court, Discovery, Justice Sotomayor, Mohawk Industries, Inc. v. Carpenter, Orders", Privilege, Stuart M. Gerson, Upjohn Tagged with ,