After getting the latest favorable Facebook discovery decision in Largent v. Reed, and seeing that Largent cited to a recent New York case that we didn’t know about, we’ve come to the (probably belated) conclusion that the fast-developing area of e-discovery for defendants with respect to social media maintained by plaintiffs is worthy of
We have offered multiple posts (83 and counting) on Multi-District Litigation. Some of those posts might seem at odds with each other. But as Emerson said, “A foolish consistency is the hobgoblin of small minds.” As Whitman said, “Do I contradict myself? Very well then, I contradict myself. I am vast; I contain multitudes.” And Charles Barkley, after all, once claimed he had been misquoted in his autobiography. The problem with taking any sort of position on MDL procedure is that you never know which side of the issue you might occupy. The theory behind Multi-District Litigation is that consolidation of pretrial proceedings should produce efficiency. Who’s against efficiency? You’d be surprised. (Or maybe you wouldn’t.) If an MDL really resulted in streamlined litigation that is less expensive, without any alteration in substantive rights and outcomes, one would be hard-pressed to squawk. But MDLs can change things in substantive ways. First, creating an MDL inevitably inspires plaintiff lawyers to file boatloads of iffy cases, with the idea of docking them in the MDL for the duration and eventually racking up additional settlements and attorney fees. Second, an MDL puts you in front of a different judge — the transferee judge. That, friends, can make all the difference in the world. In all likelihood, one side will be much happier with the transferee judge, and the other side will pine for remand just to get away from the transferee judge.
This scenario showed up in the recent case of FedEx Ground Package System, Inc. v. United States Judicial Panel on Multidistrict Litigation, No. 11-2438 (7th Cir. Nov. 17, 2011). It’s not a product liability case, but it addresses an interesting wrinkle of MDL procedure. FedEx delivery drivers filed class actions against FedEx, alleging that FedEx had inappropriately treated them as independent contractors rather than employees. The Joint Panel on Multi-District Litigation (the JPML — the defendant in the Seventh Circuit case) sent the cases to a veteran district court judge in South Bend, Indiana. That judge issued a summary judgment in FedEx’s favor, ruling that the drivers were, indeed, independent contractors. That ruling resolved all claims in 22 cases, teeing them up for appeal to the Seventh Circuit. But there were 12 other cases with some surviving claims. What would happen to them? The transferee district judge decided to remand those cases to the transferor districts, which would deal with the other claims. Any appeals, including appeals of the ruling by the transferee judge, would be appealed to the circuit court for that transferor court. That would, of course, open the prospect of inconsistent rulings on the contractor-employee issue.Continue Reading Seventh Circuit Delivers Potential Circuit Split on MDL Procedure
Here’s a rarity for us – two e-discovery posts in a row. This one’s about another of our favorite topics, e-discovery for defendants.
We’ve just been gifted with (thanks, Dan) a downright scholarly opinion on the discoverability of a plaintiff’s relevant Facebook information from a Court of Common Pleas in rural Pennsylvania. The case is Largent v. Reed, No. 2009-1823, slip op. (Pa. C.P. Franklin Co. Nov. 8, 2011). It’s not a drug/device case (it’s an auto accident), but if you’re seeking discovery of a plaintiff’s Facebook account, it’s well worth the read. In particular, there’s probably the best discussion of how Facebook works, from a privacy – or non-privacy, as would be a better term – perspective than any other opinion we’ve yet seen. The discussion of Facebook, its privacy settings, tagging, and the like, is on pages 3-5.
The reason for the Facebook discovery in Largent is typical: The plaintiff “testified that she suffers from depression and spasms in her legs, and uses a cane to walk.,” but on her Facebook page, she posted “several photographs that show her enjoying life . . . and a status update about going to the gym.” Slip op. at 6,8. Obviously the latter is relevant to debunk the former (although, amazingly, the plaintiff contested that, too).
Briefly, the legal conclusions in Largent are these:
(1) A plaintiff’s social networking is discoverable.
It is clear that material on social networking websites is discoverable in a civil case. Pennsylvania’s discovery rules are broad, and there is no prohibition against electronic discovery of relevant information. Furthermore, courts in other jurisdictions with similar rules have allowed discovery of social networking data.”
Slip op. at 8 (referring to a number of cases, all of which this blog has discussed in prior ediscovery posts).Continue Reading Another Excellent Facebook E-Discovery Opinion
Ediscovery is dreadfully expensive. Plaintiffs are dedicated to keeping it that way, as they know that anything that drives up a defendant’s litigation costs (and mass tort ediscovery falls disproportionately on defendants) increases the settlement value of even meritless cases – and any mass tort has lots of meritless cases.
All too often judges, not
God only knows how many times we’ve posted on the topic of removal before service, because we can’t count that high. We did take a look through our “removal” topic tag and figured out that our last post about this subject was back in May. Well, a reader recently sent us a new
Medical monitoring is an odd-duck (we would say illegitimate) tort because it’s almost 100% dependent upon a particular procedure – the class action – for its existence. Procedure, of course, is not supposed to alter the substantive law, but in medical monitoring it has. Thus, kill the medical monitoring class action and one largely kills the tort.
We blogged not too long ago about the Third Circuit’s decision in Gates v. Rohm & Haas Co., 655 F.3d 255 (3d Cir. 2011), because of that court’s evaluation of the presence of individual medical/exposure in medical monitoring claims. The finding in Gates on the predominance question, we thought, pretty much closed the coffin on class certification of medical monitoring claims, at least under Pennsylvania law.
Kill the class action and we kill the tort.
Here’s another recent opinion putting some nails in the coffin: Fiorentino v. Cabot Oil & Gas Co., 2011 WL 5239068 (Disc. Sp. Master M.D. Pa. Nov. 1, 2011). The special master’s ruling arises in a somewhat odd context, a discovery dispute. It’s not entirely clear, but we think it’s a fracking case – part of the latest environmental guerilla war in these parts (although with natural gas less carbon-intensive than coal, we’re not sure what the fight is really supposed to be about).Continue Reading Medical Monitoring – Another Individualized Issue
This is our third straight post on the learned intermediary doctrine. Many things in life come in threes. We bet you have an aunt who, every time a famous person departs this vale of tears, announces that two more will shortly follow. Sometimes the rule of three celebrity deaths is fulfilled by a bit of stretching. Academy Award and Nobel Prize winners die, and then crazy auntie issues an I-told-you-so upon learning of the expiration of a minor actor who once played a villain on “Sheriff Lobo.” Skeptical though we may be, we cannot deny that art, religion, and politics from all the world’s cultures invest a special significance in the number 3. There were three Fates, three witches in Macbeth, three government departments that Rick Perry would eliminate, three Pep Boys, and, of course, Three Stooges.
On an episode of “Who Wants to Be a Millionaire” the $500,000 question was, “How many actors played the Three Stooges?” The contestant was a former clerk of Sixth Circuit Judge Danny Boggs, and he had chosen Judge Boggs as his “lifeline.” Judge Boggs is certainly one of the most brilliant judges in America. He is famous for the quiz he sends out to clerk applicants that tests wide-ranging areas of learning. For example, “Distinguish Belisarius from Bucephalus from Bocephus.” Anyway, Judge Boggs had to admit on national TV that he couldn’t say how many thespians played Stooges. The answer is six: Moe, Larry, Curly, Shemp, Joe Besser, and Curly Joe DeRita. (No, Ted Healy and Emil Sitka don’t count.) So the next time you have an oral argument in the Sixth Circuit and are frightened of facing Judge Boggs – who makes any panel “hot” – just remember that you know something he doesn’t.
For some reason, our post on Friday about a federal court making up exceptions to the learned intermediary rule out of whole cloth makes us think of the Three Stooges. It was farcical and we half expected the opinion to end in a pie fight. Not so with today’s two cases. In both of them, federal courts followed the state law as it was, declined to invent anything new, and sent plaintiffs packing based on the learned intermediary doctrine.
Speaking of brilliant judges, we are especially pleased to see a nice learned intermediary opinion from Judge Weinstein in the Zyprexa Prods. Liability Litigation – Greaves v. Eli Lilly, 2011 U.S. Dist. LEXIS 129443 (E.D.N.Y. Nov. 8, 2011). A lot of interesting things have come from the Zyprexa litigation. Some good, some bad. When we saw an extensive table of contents in the Greaves case, going all the way from Roman numeral I to Roman numeral V, we were expecting the usual Judge Weinstein tome. But the opinion is barely eight pages long, and it gets to the point with clarity and brevity. We’ll try to cut to the chase as well as Judge Weinstein does, as he becomes the second federal judge to predict that Rhode Island courts, which haven’t yet adopted or rejected the learned intermediary doctrine, would adopt it. The reasoning is straightforward:
— the learned intermediary doctrine has been adopted in almost every state;
— there is nothing in Rhode Island law to suggest that the Rhode Island Supreme Court would not adopt it; and
— given the notoriety of Zyprexa litigation, “the manufacturer has a right to rely on the physician’s duty to warn the patient of clearly perceived dangers.”
Greaves, 2011 U.S. Dist. LEXIS 129443 at *23.Continue Reading A Couple of Decent Learned Intermediary Cases: Straight, No Chaser
We don’t like it, but sometimes we have to present bad news. Such is the case with Murthy v. Abbott Laboratories, 2011 U.S. Dist. Lexis 129102 (S.D. Tex. Nov. 8, 2011). There’s a lot of things wrong with Murthy, but one of the worst is that it’s another poster child for a supposed