As litigation becomes more global, new issues arise as parties seek to use local discovery processes in aid of cases in other countries. In Kiobel, the Second Circuit reversed a district court ruling allowing discovery related to the case pending in the Netherlands. The ruling is notable for blocking the local discovery; it is summarized in a July 23, 2018 post by Jones Day.

As litigation becomes more global, new issues arise as parties seek to use local discovery processes in aid of cases in other countries. In Kiobel, the Second Circuit reversed a district court ruling allowing discovery related to the case pending in the Netherlands. The ruling is notable for blocking the local discovery; it is summarized in a July 23, 2018 post by Jones Day.

It feels as if courts are running out of patience or tolerance for litigants who 1) are repeat players in the litigation industry, and 2) abuse judicial processes such as discovery. For a recent example, see this February 23, 2018 post at Francis Pileggi’s Delaware law blog. In it, Mr. Pileggi provides a cogent summary of a significant order on discovery sanctions. Readers will judge for themselves, but it feels to me as if there are indeed larger messages in this opinion.

Transparency as to class action damages is starting to move forward with respect to the NFL concussion litigation.  As previously noted, Judge Brody ordered counsel for the class and the NFL to put on the public record the actuarial data behind settlement proposals and negotiations.  The documents are available online at Paul Anderson’s NFLconcussionlitigation.com, in this September 14, 2014 post.  Meanwhile, the Third Circuit rejected plaintiffs’ appeal, and so more of them are moving forward in the MDL.  Specifically, some of the objectors have filed discovery requests seeking to explore the settlement negotiations, and the merits of the asserted defenses.  The requests for discovery include requests to depose class counsel and representatives of the NFL.  Some of the discovery requests are available in this separate September 14, 2014 post.

 

In the NFL concussion litigation, the federal judge overseeing the case has now ordered release of supporting financial calculations for the preliminarily approved class action settlement. The order follows motions for access by players and media.

Contrast that disclosure order against the approach in asbestos litigation. Asbestos bankruptcies are de facto class action proceedings. Nonetheless, bankruptcy judges routinely approve stipulations to hide financial information, and parties on all sides are involved in sealing up the data. The recent Garlock trial sealing order is the poster child example of sealing run amuck. Meanwhile, the same thing happens in the underlying asbestos litigation – settlement information is hidden, and so judges and lawyers operate on a combination of myths, facts, and rumors.

Will mass tort litigation ever become fully transparent?

In the age of email, tweets and more, e-discovery and its volume create issues and expense that did not exist in the days of paper. So, the New York courts are putting in place new rules for privilege logs, and related topics. A June 2, 2014 article from Skadden provides an overview of the changes.