It is the age of specialization. A prime example these days lies in e-discovery. The market is becoming even more specialized as some e-discovery firms seek out plaintiff's lawyers, and collect and distribute plaintiff-friendly case law on sanctions for discovery violations. A recent example lies in one such firm (ILS ) writing about Judge Shira Schindler's latest e-discovery opinion, which it appears will hurt the defendant.
Opinio Juris highlights an upcoming article on an important issue:
"When is an arbitral panel an international tribunal for purposes of Section 1782? Section 1782, of course, is the statute that authorizes federal courts to order discovery in aid of proceedings before foreign courts and international tribunals. As discussed in a forthcoming article in the Virginia Journal of International Law entitled, Ancillary Discovery to Prove Denial of Justice, what constitutes an international tribunal is not a simple question. It is also a critically important question, because the power to invoke federal court discovery in aid of foreign or international proceedings is one of the most effective evidentiary tools that any international lawyer can wield."
The post provides a helpful, brief history with useful links. Go there for the specifics and more.
Here is a paper from Perkins Coie on a Washington Supreme Court opinion approving an $ 8 million judgment entered against Hyundai as a discovery sanction for failing to reveal prior claims involving the same seat at issue in this case. (The link is to Mondaq - registration required; the article does not yet seem to be on the Perkins Coie website). The case name is Magana v. Hyundai Motor Am. The majority opinion is here, and a dissent is here.
Set out below are the paper's summary of the key points from the opinion - note especially the first and second bullet points.
"At least three things are worth noting about this decision.
- First, the Court held that Hyundai was required to search more than just its legal department's records for information responsive to the plaintiff's discovery requests. (In the trial court, Hyundai had tried to defend its limited initial search for responsive information on the ground that searching beyond the legal department "would have taken an extensive computer search.") The trial court, in fact, held that, as "a sophisticated multinational corporation, experienced in litigation," Hyundai "had the obligation not only to diligently and in good faith respond to discovery efforts, but to maintain a document retrieval system that would enable the corporation to respond to plaintiff's requests." (Emphasis added.)
- Second, the Court held that Hyundai's objections to the plaintiff's discovery requests did not entitle Hyundai to respond only to the limited extent that the company did respond. Instead, the Court held, Hyundai was required to ask the trial court for a protective order excusing the company from responding to the plaintiffs' discovery requests as written. The civil rules have required this step for some time, unless the parties have agreed to narrow the applicable discovery requests. Magana shows that failing to comply with the requirement can have very serious consequences.
- Finally, a default judgment would not always be appropriate for failure to respond fully to discovery. In upholding this extreme sanction in the Magana case, the Court referred to the "unique facts and circumstances" of the case, and two dissenting justices argued that even on these facts, a lesser sanction was more appropriate. All of the justices agreed, however, that Hyundai's conduct merited sanctions. The decision thus serves as a dramatic reminder that trying to "game" the discovery process is a decidedly perilous undertaking in Washington"
Here is an interesting paper from the Lehman bankruptcy. It is a motion for discovery against the UK's Financial Services Authority and PwC. (Hat tip to Am Law Daily for publishing this article on the topic, with a link to the motion. ) The opening paragraph is pasted below:
"The Official Committee of Unsecured Creditors (the "Committee")
appointed in the above-captioned chapter 11 cases of Lehman Brothers Holdings Inc.
("LBHI") and its affiliated debtors and debtors in possession (collectively, the "Lehman
Debtors"), by and through its undersigned counsel, hereby files this Motion (the
"Motion"), pursuant to section 105(a) of title 11 of the United States Code, 11 U.S.C. §§
101-1532 (as amended, the "Bankruptcy Code"), and the Hague Convention of 18 March
1970 on the taking of Evidence Abroad in Civil or Commercial Matters, 28 U.S.C. §
1781 (the "Hague Convention"), for the issuance of two Letters of Request for
International Judicial Assistance in the form annexed hereto as Exhibit A (the "Letters of
Request") to the High Court of Justice of England and Wales (the "U.K. Court") to
compel the production of documents by the following entities located in the United
Kingdom: the Financial Services Authority ("FSA"), Barclays' regulator, and
PricewaterhouseCoopers LLP and PricewaterhouseCoopers International Limited
(collectively "PwC"), Barclays' auditors."
One MDL Magistrate Judge Says Narrow Discovery May Be Taken Regarding Prefiling Investigation in a Mass Tort MDL Situation
How much pre-filing inquiry is needed for a "mass tort" product laibility claim, and when must be it done ? A recent opinion in the Digitek MDL is related to those issues, but is limited to a narrow discovery issue. Digitek is a drug. The claims in essence are that a batch of the drug was mismanfucatured, resulting in sales of doses more potent than usual, with the more potent doses caapable of causing material physical harm.
The discovery requests at issue are defendants' requests for admissons. The requests seek admissions that medical and pharmacy records had not been obtained by plaintiff's counsel when 39 particular claims were filed. The defendants acknowledged the obvious reality that the discovery requests are aimed at generating evidence to support Rule 11 motions that defendants might seek to file in the future. That's important because some opinions have warned against Rule 11 motions spawning "satellite litigation."
A Magistrate Judge's opinion approves the discovery requests over plaintiff's objections. The opinion is a basic work a day paper with limited analysis, and a weak discussion of legal privilege issues (although the outcome seems correct. That said, there are precious few opinions out there on precisely these issues, so the opinion is worth reading and tucking away for persons commonly involved with mass tort litigation. The opinion is here.
Hat tip to LAW360 for publishing an article on the opinion and including the opinion with the article.