Just two weeks ago, we largely praised an MDL court’s handling of sanctions for a plaintiff’s stonewalling in response to discovery obligations, but thought the plaintiff got off pretty light for some really egregious conduct.  Today, we report on a circuit court’s affirmance of discovery sanctions against a plaintiff counsel’s conduct for being overly aggressive in the pursuit of discovery. In light of the holiday today, we will be extra careful in how we describe the plaintiff’s counsel’s conduct and refrain from drawing any conclusion about what the conduct here says about the counsel. We will leave to the reader to decide whether the sanction imposed here—about $25,000 in costs and fees—will have a sufficient deterrent effect and whether the cost of an appeal of a $25,000 sanction after the plaintiff lost summary judgment was worth it.

As you might expect for a case that got to an appeal on a sanction order, the history of Vallejo v. Amgen, Inc., — F.3d –, 2018 WL 4288360 (10th Cir. Sept. 10, 2018), is complicated. Our summary of the pertinent facts is just a summary, with more flavor in the actual case. The case involves an estate suing over a fatal blood cancer called myelodysplastic syndrome (“MDS”) in a patient taking a well-known biologic for psoriasis. Perhaps because of the track record of the medication and the relative novelty of the claimed injury, the court ordered that the first phase of discovery should focus on whether the medication can cause MDS. (It appears that the medication has been studied in the treatment of MDS in multiple studies among the hundreds completed over decades.) After disputes arose on the scope of such general causation discovery, the magistrate held a hearing at which plaintiff presented an expert, who claimed he needed every clinical trial on the drug and all information relating to possible effects on “red blood cells, white blood cells, platelets, or any precursor cells for these blood cell lines.” The magistrate concluded that the scope of discovery sought by plaintiff was unreasonable. Ignoring that, plaintiff served broad discovery requests and the defendant objected on scope, burden, and proportionality, offering to produce a range of documents focused on the medication and MDS. Plaintiff sought to require the defendant to search adverse events for 206 terms, but the magistrate “limited discovery to 15 search terms that provided the most specificity to MDS.”

Plaintiff also sought discovery on other medications of the same class and the defendant objected. The magistrate ordered the defendant to produce non-public studies on the possible relationship between the medication and MDS. Defendant also offered up a global safety officer for deposition and plaintiff demanded the names of everyone who ever worked on adverse event handling for the medication or who had responsibility for any evaluation of its relationship to MDS. The magistrate allowed the plaintiff to depose the safety officer to find out other witnesses as needed. Because the defendant had not submitted affidavits to prove the burden of coming up with a list of everyone who had worked on the medication over decades, the magistrate advised the parties that they would need to “quantifiably explain the burden of providing the requested information” going forward. Plaintiff sought clarification from the magistrate and appealed the discovery order to the district judge. The district judge denied the appeal, noting the role of proportionality in discovery.

Meanwhile, plaintiff noticed up the safety officer for deposition beyond what the magistrate had ruled was permissible, and the magistrate had to issue a protective order until the district court could rule. When the deposition started after the district court’s ruling, plaintiff sought to question beyond the scope of the rulings. The magistrate suspended the deposition for more briefing and to set a time to supervise the deposition when it reconvened. When that happened, plaintiff’s counsel tried to reargue prior rulings, argued with the magistrate, and “asked the witness questions which were explicitly beyond the scope of discovery as ordered by the court.” Thereafter, the magistrate denied a motion to compel additional depositions and document production, noting that plaintiff’s counsel had plenty of information on causation from what had been produced and from other sources. The magistrate also directed plaintiff to disclose the general causation experts that her counsel had claimed to have when arguing with the magistrate during the safety officer’s deposition. Plaintiff again appealed and the district court again denied it.

After all this and some more jockeying, the defendant moved for sanctions for plaintiff’s counsel’s “repeated attempts to circumvent the court’s limitations on the first stage of discovery and abused the judicial process.” Defendant sought about $141,000 in fees and costs and the magistrate awarded about $25,000 for a variety of sanctionable conduct. The district court came to the same conclusion on its de novo review after appeal. After summary judgment was granted because plaintiff failed to name a causation expert, despite the claims of her counsel that she had retained one, the appeal to the Circuit Court followed. If are not exhausted after that recap, then you have more tolerance for discovery fights than do most courts we know. You might also reflect on the question of whether the burdensome discovery plaintiff sought and the fights that she initiated on discovery issues were part of a scheme to force some kind of settlement before having to prove general causation.

In affirming, the Tenth Circuit not only reinforced the limits on what counsel can do when they keep losing discovery fights, but provided guidance on some recurring issues in discovery. We start with the final word:

Attorneys are entitled to advocate zealously for their clients, but they must do so in accordance with the law, the court rules, and the orders of the court. The district court properly exercised its inherent power to sanction Vallejo’s counsel, and we find no abuse of discretion.

Focusing on the motion to compel that plaintiff filed after the first attempt at deposing the safety officer, this was easily characterized as “relitigation of issues already decided by the court.” It did not matter whether plaintiff had a basis for the positions that it took initially. As the magistrate held—within its discretion per the Circuit Court—“absent any change in circumstances, filing additional motions raising the same arguments was harassing, caused unnecessary delay, and needlessly increased the cost of this litigation.”

On the issue of proportionality, the Circuit Court affirmed that proof of burden can be established by means other than sworn statements. While statements in a brief (signed by counsel) are not proof, a court may consider “common sense” in evaluating the burden part of proportionality. In this case, it also had plaintiff’s counsel’s demonstration of how many hits a small portion of plaintiff’s preferred search terms produced. So, plaintiff’s counsel could not excuse misconduct by claiming no limits should have been imposed in the first place.

Plaintiff’s efforts to turn the focus to alleged misrepresentations by the defendant’s counsel were similarly rejected, as the Circuit Court was “satisfied that the district court did not rely on misrepresented facts by [defendant] in issuing its discovery orders.” Nor could she shift the focus to how the magistrate conducted the discovery hearing in terms of questioning of defendant’s expert, whose core opinion was that the Biologic License Application had relevant information on causation. Among other things, the district court did not rely on the defendant’s expert in limiting the scope of discovery. Plaintiff also tried to claim that she should have had access to all the information FDA might consider in evaluating medical causation, but this was a red herring given the difference between FDA standards and court standards, the absence of any MDS signal, and the court’s discretion to limit discovery on general causation. Plaintiff’s last gasp was to claim her case was prejudiced by the sanctions against her, but it was her counsel’s decision to claim she had general causation experts and her failure to name even one when required, instead trying to get by with a designation of an unspecified employee of one of the companies involved with the medication.

In short, plaintiff’s counsel conduct was sanctionable because the court set limits on discovery within its discretion and then plaintiff’s counsel chose to relitigate them and flaunt them until plaintiff lost for the fundamental reason of having no general causation expert. The fact that plaintiff ultimately lost despite pursuing these tactics reinforces that the tactics were obstructionist rather than excusing the tactics themselves. Even on the defense side, where we have been known to litigate aggressively on issues like the scope of discovery and the sufficiency of general causation, Vallejo can be instructive on the need to respect final rulings as the law of the case.

Stop us if you have heard this before. A novel or movie depicts litigation in which a large corporate defendant is sued for causing a plaintiff or plaintiffs significant injuries through a frivolous or non-beneficial product. In defending the litigation, the corporation and its unscrupulous lawyers hide important documents from the scrappy plaintiff lawyer, who, depending on the fiction’s direction, never discovers or miraculously discovers the key evidence. Perhaps informed by this view of corporate defendants and their lawyers as less than honorable, a number of courts have imposed significant sanctions against defendants when, despite producing millions of pages of documents created well before the litigation started and gathered from around the world, fail to preserve and produce some number of documents that the plaintiffs contend should have been produced. The importance of the documents to the case and the overall merits of the case tend not matter to the award of sanctions. To the contrary, the sanctions can themselves affect the outcome of the litigation. We know you have heard about these litigations, as we have described them in a number of posts through the years.

The situation where a plaintiff is sanctioned for her refusal to disclose information and produce documents in litigation is far less common. Mind you, we do not think the conduct is less common. We think it happens all the time, but rarely goes to motion let alone a published decision about a bellwether plaintiff in a product liability MDL. In re Taxotere (Docetaxel) Prods. Liab. Litig.¸ MDL No. 2740, 2018 WL 4002624 (E.D. La. Aug. 22, 2018), presents a sanctions order that may not signal a trend toward equal treatment for plaintiffs and defendants on discovery obligations and sanctions because this plaintiff’s conduct was just so obviously bad.

The plaintiff was suing over hair loss from a chemotherapy drug for her cancer. She was also a medical doctor and bellwether plaintiff. (We pause just on these facts in case our readers want to ponder how litigation now is different than the “old days,” whenever that might have been.) The MDL had a Plaintiff Fact Sheet requirement and an order explaining discovery obligations for electronically stored information apply to them too. After bringing her suit and for over a year thereafter, the plaintiff treated with, or at least sought advice from, a physician on how to regrow her hair through an unspecified regimen.  She documented her progress with photographs and, when the treating physician asked for permission to use them to promote his treatment, squarely stated she “[w]ould rather not have the lawyers for the other side put two and two together just yet.” She failed to identify this physician on her fact sheet, provide authorizations for him, or identify the treatment she was receiving at his suggestion. When she realized that her produced emails—like we said, the court realized plaintiffs have to produce ESI too—included information about this undisclosed physician, she directed him to resist discovery: “just tell them that you weren’t really my doctor . . . you don’t have any records [and] you never saw me.” Meanwhile, plaintiff (who had a lost wages claim) directed her former employer, a particular Veterans Affairs Medical Center, to refuse to produce any employment or medical records.

The decision focused on the plaintiff’s conduct regarding her undisclosed physician. Plaintiff’s primary defense was that the doctor recommending her a treatment regimen she was utilizing and corresponding with about its progress was not really “her doctor.” She supported this argument with an affidavit from the doctor to the effect that he did not consider the plaintiff to be his patient. This argument did not hold water because the PFS required disclosure not just of treating physicians, but any healthcare provider consulted over the prior eight years, including any “hair loss specialist.” It also required disclosure of “over-the-counter medications, supplements, or cosmetic aides for your hair loss.” We assume it also required production of photographs documenting the extent of any claimed injury (i.e., hair loss over time). It was easy to find that plaintiff had failed to comply with her discovery obligations, especially because “she has encouraged at least [two] potential witness[es] to be less than forthcoming in this litigation.”

What was the sanction? She had to produce the stuff she was supposed to produce anyway, sit for further deposition on the withheld evidence, and pay the defendant’s cost for the motion for sanctions. Yawn. The order was supposed to be a warning for her or “any other plaintiff who might be considering adopting evasive tactics like those discussed in this opinion.” We think she got off light and, particularly in the context of a big MDL—this one has more than 9000 pending cases—the sanction lets plaintiffs and their lawyers make calculated decisions about whether it pays to avoid discovery obligations. We cannot see a defendant in a litigation like this getting off nearly so lightly had it done anything like what plaintiff did here.

 

The whole business of discovery in civil litigation is dreary and depressing.  In a mass tort, a defendant can rack up defense verdicts yet still incur discovery costs that exceed the damage amounts sustained by defendants found liable in other torts. Little wonder that the mass of defense lawyers in mass torts lead lives of quiet desperation. At least, that’s true for the poor drudges who must review documents for responsiveness and privilege.

We’ve been thinking about Henry David Thoreau.  An anniversary is almost here.  Walden was published on August 9, 1854.  Thoreau built a cabin near the shore of Walden Pond and began living in it on July 4, 1845, “alone in the woods, a mile from any neighbor.” It was a declaration of independence.  He lived there for two years, two months, and two days.  The book took eight years to write, and there is much more artifice in it than straight nature reporting.  Whatever you think about American exceptionalism, Thoreau exemplified many traits that, for better or worse, seem at the core of the American ethos:  embrace of self-reliance and ecological preservation, and stand-offishness with respect to politics and society.  We wondered whether Thoreau wrote anything about discovery.   Our well-worn volume of Walden contains an index, but we found no reference to “discovery.”  Nor was there a word about document requests.  The best we could do was the famous passage in the “What I Lived For” chapter that explains the project at hand:  “I went to the woods because I wished to live deliberately, to front only the essential facts of life, and see if I could not learn what it had to teach, and not, when I came to die, discover that I had not lived.” There’s that word “discover,” but we suspect Henry had something else on his mind.

Thoreau never had the misfortune to encounter Federal Rules of Civil Procedure 26, etc.  Had he, he might have drafted an interrogatory about discovery:  “whether it is necessary that it be as bad as it is, whether it cannot be improved as well as not.” Most of what we do in civil litigation is discovery, and most of that is a waste of time.  Such time wasting would have mightily irked Henry:  “As if you could kill time without injuring eternity.”  From Thoreau’s revelatory prose we now turn to a judicial opinion that makes those of us who spend time opposing discovery want to retreat to the woods.

Today’s case is In re: Genentech Herceptin (Trastuzumab) Marketing and Sales Practices Litigation, 2017 WL 9939631 (N.D. Okla. May 8, 2018). The defendants wanted to argue preemption, and the plaintiffs engaged in what has become the typical response of insisting on wide-ranging discovery to test the preemption defense.  “Wide-ranging” is an understatement.  From the court’s description, it seems that the plaintiffs wanted pretty much everything.  The defendants countered with something less than everything.  And so we end up with cross discovery motions.  The plaintiffs filed a motion to compel while the defendants filed a motion for a protective order regarding all unanswered preemption discovery requested by the plaintiffs.  The court granted every one of the plaintiffs’ motions to compel discovery responses, and denied every one of the defendants’ motions for protective order.  The opinion is a sadness machine.  That machine is fueled by two all-too-common judicial impulses: (1) letting plaintiffs conduct any discovery they want, and (2) hostility to the preemption defense.  Why, it is almost as if the court was unhappy with the defendants for even raising the preemption defense.

At least the court was convinced that the preemption issue should be decided prior to class or merits discovery.  But the court entertained what it called “a more realistic view of the discovery required for resolution of the preemption motion.” “Realistic” turns out to mean exceedingly broad.  According to the court, the defendants’ preemption motion “relies upon evidence regarding its communications with FDA and its manufacturing process, both of which Plaintiffs are entitled to explore before responding to the motion.”  Consequently, the “preemption defense opened doors in discovery that may well have stayed closed if the only issue was breach of a state-law warranty.”  Open doors are bad.  They let in all sorts of unwanted things – traffic noises, heat, peddlers and, bugs, to name a few.  And bad ideas.

Here, the court opened the door very wide indeed.  For example, the plaintiffs wanted all correspondence between the manufacturer and the FDA relating to product labeling – both pre and post approval.  They also asked for all Establishment Inspection Reports, FDA Form 483s, and Warning Letters issued by the FDA relating to the labeling.  That scope might make sense if the defendants were raising Wyeth v. Levine “clear evidence” preemption.  But they weren’t.  Rather, the defendants argued that the proper inquiry is whether they could “independently do under federal law what state law requires” and whether they could, as a matter of law, “make a unilateral label change that would satisfy the state-law obligation alleged in Plaintiffs’ Complaint.”  That’s Mensing/Bartlett.  That’s different.  That’s straightforward.  That’s binary. The defendants quite logically argued that they were “not raising a Wyeth-type preemption defense and that Plaintiffs ‘have no need for discovery relating to an argument [they] will never make.’”   The defendants also argued that even under the Wyeth changes-being-effected analysis, the plaintiffs could not possibly unearth any “newly-discovered information” that would prompt a labeling change, because it was clear that the FDA knew the relevant information.  End of story.  End of inquiry.  End of discovery.

The defendants were being very Thoreauvian.  They wanted to “simplify, simplify.”  But the court, perversely, was having none of it.  Here is what the court said:  “This Court – and not Defendant – will ultimately decide how to apply Supreme Court law to the evidence presented. Plaintiffs are entitled to advocate for the Wyeth standard, and their requested discovery is relevant to the impossibility preemption analysis in Wyeth.”

And here we must digress.  We are reminded of a story about a legendary D.C. Circuit judge who had stayed on the bench a bit too long.  His practice for oral argument was to consult index cards filled with questions written up by his clerks.  By “ consult,” we mean that he would read off the questions, word for word.  At one argument, he read off a question and managed to stump a polished advocate.  Said polished advocate was stumped because the question had absolutely nothing to do with the case.  Awkward silence. Then the clerk ran up to the side of the bench and whispered frantically, “ That’s the next case, the next case.”  The elderly judge was having none of it.  He sputtered, “ We’re not getting to the next case until this lawyer answers my question!”

In the In re Herceptin case, it is as if the judge was listening to a different case – certainly a different argument.  No wonder, then, that the discovery analysis is so wrong.  Granting the discovery requests would require search of “an extensive regulatory database containing over four million documents.”  The defendants argued proportionality, but the court finds “this proportional to the needs of the case, considering the importance of the issues raised in this multi-district litigation action, the substantial amount in controversy, Defendant’s access to relevant information, Defendant’s resources, and the importance of the discovery in resolving the issues.” So now, in addition to the court’s laissez-faire (or is it les bon temps rouler?) attitude toward discovery, evident disaffection with preemption (at one point, the court bemoans how the plaintiffs “will be deprived of resolution of their state-law claims if the [preemption] defense is successful”), and misconstruction of the defense arguments, we get that other discovery bugaboo about how an MDL  can make even the most extravagant plaintiff discovery request seem proportional.  There is good authority to the contrary (see here, for example), but you won’t see it cited by this court.

Thus, the plaintiffs walk off with a clean sweep win.  They will get communications occurring prior to FDA approval relating to the “Chemistry, Manufacturing and Controls” because such information could be relevant to an obstacle preemption defense that the defendants are not raising.  The plaintiffs will get discovery on the approval process for the purpose of exploring whether FDA “weighed the competing interests relevant to the particular requirement in question, reached an unambiguous conclusion about how those competing interests should be resolved … and implemented a conclusion via a specific mandate …”  Hmm.  That “unambiguous” bit sounds like the Third Circuit’s Fosamax analysis that is sure to be trashed by SCOTUS next year.  To be clear, it is hard to blame the plaintiffs for their approach.  They smartly asked for as much as the court would give them, which turned out to be the whole kit and caboodle.

But wait.  There’s more.  The plaintiffs will not only get everything under the sun involving the product labeling, but will also get all documents and communications touching on the mass, volume or density of the medicine available in a vial.  Naturally, inevitably, ineluctably, the court rejected the defendants’ argument that, “even if additional documents exist, they would be cumulative and would not meaningfully alter the preemption analysis.”  Why?  Here is the court’s answer:  “If one document certainly exists saying ‘ x,’ – which is relevant to overcoming a preemption defense – it is not overly speculative that other similar documents exist in Defendant’s files.” Huh?  That’s like saying that no evidence could ever be cumulative. If there is some evidence of something, we must collect all such evidence.

The defendants even lost an argument that should have been a sure winner – that discovery on “the number of rejected lots is irrelevant because these batches never reached customers.”  Nobody bought those products.  But the court wasn’t buying the argument, because the preemption defense “is not devoted to the substantive claims.”  Well, if a defense is not devoted to substantive claims, it is not really a defense, is it?

The court’s opinion in In re Herceptin leaves us dissatisfied and puzzled.  Near the end of Walden, Thoreau tells us that he “left the woods for as good a reason as I went there.  Perhaps it seemed to me that I had several more lives to live, and could not spare any more time for that one.  It is remarkable how easily and insensibly we fall into a particular route, and make a beaten track for ourselves.”  To our mind, the court’s all-in approach to discovery in Herceptin is an overly-beaten track.  It is certainly insensible.

Anyone interested in what’s wrong with mass torts in today’s litigation landscape should read the recent article in the New York Times, “How Profiteers Lure Women Into Often-Unneeded Surgery,” which ran in the paper on April 14, 2018, and is available online here.  Briefly, the article exposes litigation (and pre-litigation) conduct that amounts, at best, to unnecessary surgery, and, at worst, to certain doctors, lawyers, and litigation funders conniving to bring about harmful surgeries that caused additional injury to their own supposed clients.  Here are some excerpts from the article – there’s lots more, but we have to limit ourselves to fair use:

  • “[A] growing industry that makes money by coaxing women into having surgery − sometimes unnecessarily − so that they are more lucrative plaintiffs in lawsuits against medical device manufacturers.”
  • “Lawyers building [vaginal mesh] cases . . . turn[ing] to marketing firms to drum up clients.”
  • “Women with mesh implants . . . receiving torrents of unsolicited phone calls, some originating overseas” from telemarketers who “seemed to know their medical histories.”
  • “[M]arketers turn[ing] to finance companies to provide high-interest loans to the [women] that have to be repaid only if the [women] receive money from the case.”
  • “Those loans are then used to pay for surgery performed by doctors who are often lined up by the marketers.”
  • Promises that “all [a woman’s] expenses would be covered and that she would be set up with a lawyer to help her sue the mesh manufacturer.”
  • “[M]iddlemen” arranging for surgery in “walk-up clinics” in “shopping malls.”
  • Doctors performing “four or five removals in a day” and pocketing as much as $14,000 a day.
  • “The women generally didn’t meet the doctors who would be operating on them until shortly before the procedure.”
  • Women charged $21,000 per surgery, “at a double-digit interest rate,” to be paid for from “lawsuits brought by women against the mesh manufacturers.”
  • “[H]undreds, perhaps thousands, of women . . . sucked into this assembly-line-like system. . . .  The profits are immense.”
  • “[P]laintiffs who do collect settlements see much of the money go to the financing firms.  Another large slice goes to their lawyers.”

Other than what’s obviously disturbing about reports of such dubious goings on, the Times article leads us to two observations:

First, the conduct described in the Times article provides further support, in the form of a compelling example, for the increasing calls for some sort of mandatory disclosure of litigation financing, at least in mass torts.  The abuses described in the article show how both the integrity of the mass tort litigation process, and the reputation of litigation financing generally, can be harmed by litigation solicitation and financing arrangements not being transparent, particularly where the litigation itself is largely solicitation-driven, as in most mass torts.

As the Times article demonstrates, solicitation, while constitutional under the First Amendment, is rife with potential for abuse.  Our colleagues on the other side might counter that so is pharmaceutical detailing.  Well, precisely to prevent abuse, the sales practices of our clients are regulated in multiple ways − including disclosure of financial arrangements between them and physicians that prescribe/use their products.  Those on the P-side with nothing to hide have nothing to fear from disclosure.  Thus, if litigation financing wants to be considered as legitimate as, say, insurance, that supports the case for routine disclosure of such arrangements in the same fashion as insurance, as Wisconsin recently decided to do:

Except as otherwise stipulated or ordered by the court, a party shall, without awaiting a discovery request, provide to the other parties any agreement under which any person, other than an attorney permitted to charge a contingent fee representing a party, has a right to receive compensation that is contingent on and sourced from any proceeds of the civil action, by settlement, judgment, or otherwise.

Wis. Eng. Asbly Bill 773 §12 (new §804.01 (2)).  Whatever the merits of the Wisconsin approach, or whether it’s necessary outside of the mass tort context, that approach has the advantage of being a simple, bright line standard.

Certainly, disclosure would be a sure and quick way to expose the kind of deals described in the Times article that women have been enticed into in the Vaginal Mesh litigation.  Existence of this kind of financing would be a red flag that the injury claims in such cases required careful investigation.

Which brings us to….

Second, the Times article strongly suggests that these abuses are widespread in the Vaginal Mesh MDL litigation.  Arrangements this elaborate are not worth the trouble for only a small number of cases.  According to the Times article, “perhaps thousands” of lawsuits have been tampered with in the ways that the article describes.

Without disclosure, the kind of aggravation of damages described in the Times article – ironically, the opposite of the accepted common-law duty to mitigate − is hard to unearth.  The Times article quotes “Magistrate Judge Cheryl Eifert in West Virginia”:

“People are claiming the Fifth [Amendment privilege against self-incrimination] and so on and so forth.  They don’t have to talk about necessarily how much money they make, per se, but if someone would just give them an idea of how the arrangement works.  But nobody’s willing to do that.”

Magistrate Judge Eifert has been overseeing aspects of the Vaginal Mesh MDLs.  E.g., In re American Medical Systems, Inc. Pelvic Repair Systems Products Liability Litigation, 946 F. Supp. 2d 512 (Mag. S.D.W. Va. 2013) (opinion by Eifert).

That’s concerning because, as we pointed out a couple of months ago, discovery in the remaining 23,000 cases in the Mesh MDLs has been ordered to be completed with:  (1) extreme haste, and (2) significant limitations on the number of interrogatories that can be propounded and witnesses deposed (see paragraph 2 of the four PTOs linked to in the prior post).  Since there may well be hundreds (if not more) of those 23,000 cases involving questionable surgeries conducted under questionable circumstances, the current rush to remand – combined with the obstructive tactics described in the Times article – creates a considerable risk of miscarriage of justice.  Defendants do not appear to have been given the time or the discovery tools needed to unearth plaintiff-side shenanigans on the scale described in the Times article.  There comes a point at which the efficiency objectives of multi-district litigation have to yield to the higher objectives of justice.

In the Diet Drug litigation – a mass tort of comparable scope – all kinds of problems arose with “the District Court [being] inundated with fraudulent benefits claims.”  In re Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Products Liability Litigation, 573 Fed. Appx. 184, 185 (3d Cir. 2014).  Unfortunately, the widespread fraud perpetrated in Diet Drug only became apparent after settlement – as would eventually be the case here, since contingent fee surgeries will almost surely be a topic of inquiry after the Times article.  The opportunity still exists in the Pelvic Mesh MDLs for diligent discovery to ferret out the false or inflated claims, but that can only happen if adequate discovery is permitted to occur.

We are back in the trenches today after spending a wonderful day in New York with our lifelong best friend, in yet another of the blissfully endless celebrations of the milestone birthday we marked in December. We saw “The Band’s Visit,” a new musical based on a 2007 movie about eight members of an Egyptian police orchestra stranded overnight in a remote Israeli town.  The band members accept a local resident’s invitation to bunk overnight in her café, setting the stage for lovely intersections of hearts, minds, and cultures.  It is short, sweet, and very satisfying.

As is today’s case, for those of us who defend prescription drug and device manufacturers. In Kwasniewski v. Sanofi-Aventis, LLC, 2018 WL 1567851 (D. Nev. Mar. 30, 2018), the plaintiffs alleged that the defendant’s prescription sleep medication caused their decedent to commit suicide.  The opinion includes the judge’s decisions on objections to several earlier rulings by the magistrate judge and her decision on the defendant’s motion to dismiss the plaintiffs’ design defect claims.

Objections to Magistrate’s Rulings

First, the plaintiffs objected to the magistrate’s refusal to stay discovery – and relieve the plaintiffs of their obligation to respond to the defendant’s pending discovery requests – while the defendant’s Motion to Dismiss was pending. The court agreed with the magistrate, emphasizing that “[t]he Federal Rules of Civil Procedure do not provide for automatic or blanket stays of discovery when a potentially dispositive motion is pending.” Kwasniewski, 2018 WL 1567851 at *2.

Second, the plaintiffs objected to the magistrate’s application of Nevada’s learned intermediary doctrine.   In a 30(b)(6) deposition notice, the plaintiffs included topics concerning “information about direct to consumer advertising.”  Because, under the learned intermediary doctrine, the defendant had a duty to warn only “medical experts, not consumers, about the dangers of [its prescription drug],” id. at *4, the magistrate ruled that deposition testimony about direct-to-consumer advertising was irrelevant.  As such, she limited the plaintiffs’ Rule 30(b)(6) deposition topics to the defendant’s “representations to the medical community.”  The plaintiffs argued that the magistrate had “effectively decided a dispositive motion” by applying the learned intermediary doctrine, and that the doctrine was an affirmative defense that had not yet been pled.  The court again affirmed the magistrate and barred the plaintiffs from discovering information  that the defendant had disseminated directly to consumers. We like this ruling and applaud the court’s adherence to the standard imposed by Fed. R. Civ. P. 26, requiring discovery to be “relevant to [a] party’s claim or defense and proportional to the needs of the case,” and its refusal to sanction a meaningless and abusive fishing expedition.

Defendant’s Motion to Dismiss

The defendant moved to dismiss the plaintiffs’ design defect claims sounding in both strict liability and negligence, arguing that “any claim that [the defendant] should have changed the formulation of [the product] or that the product should simply not have been marketed are preempted by Federal Law.” Id. at *5.  In their response, the plaintiffs conceded that they were “not arguing that that [the defendant] should have reformulated the drug – just simply that [the defendant] should have” included adequate warnings of the drugs alleged suicidality risk. Id. As such, the court was able to grant the defendant’s motion, and foreclose the plaintiff’s from alleging a design defect claim at a later date, without addressing the preemption argument.. (Given this court’s clear-headed, correct-leaning rulings, we suspect that its preemption decision would have been fun to read.)

Kwasniewski is a tidy, no-nonsense, defense-friendly opinion.. If, on this beautiful spring day, we are confined to an office and not roaming the Great White Way, we are pleased that this case crossed our desk.

Dating back to our Bone Screw days we have mostly pleasant memories of using surveillance to catch plaintiffs making phony claims.  For a variety of reasons, a large percentage of the Bone Screw plaintiffs were workers’ compensation claimants.  A bigger collection of malingerers, Munchausens, and phony fibromyalgias we’ve never encountered, before or since.  This motley crew, particularly in those cases litigated outside the MDL, or after remand, was particularly amenable to surveillance as a means of exposing their overblown, or often just plain invented, injury claims.

One guy who supposedly couldn’t lift more than ten pounds after his back injury, we got on tape picking up the back end of his motorcycle to put it on a jack.  Another guy who claimed he could hardly walk, we caught riding a bicycle more than a mile on a Jersey Shore boardwalk.  And so on and so forth.  Sometimes their counsel were in cahoots, but most of the time their counsel (at least counsel prosecuting the Bone Screw claim) persuasively claimed to have no idea of their clients’ mendacity.  They just didn’t care to find out.  We found out.  Needless to say, our surveillance made those cases go away quickly.

That’s why we were gratified to read the Texas Supreme Court’s defense of surveillance in Diamond Offshore Services Ltd. v. Williams, ___ S.W.3d ___, 2018 WL 1122368 (Tex. March 2, 2018) (“DOS”).  DOS was – guess what – a suit over a workplace injury.  The plaintiff’s medical information “w[as] consistent with patients who are exaggerating their symptoms” and his complaints were “not consistent with what the client was able to do during” testing.  Id. at *2.  That led to surveillance.  “[T]he employer, believing the employee to be exaggerating the extent of his pain and physical limitations, hired an investigator who conducted surveillance and recorded the employee engaging in physical activities over the course of two days.”  Id. at *1.  According to the defendant, the tapes were dynamite stuff (see, id. at *2 (describing tapes)), but the trial judge, for whatever reason, refused to even look at them, let alone admit them into evidence.

The Texas Supreme Court recognized the probative value of surveillance that successfully catches plaintiffs in acts inconsistent with their injury claims:

[I]mages captured for myriad purposes, and in various forms, regularly work their way into the courtroom.  For decades, trial courts have encountered evidentiary issues related to video evidence and, as video technology continues to become more portable and affordable, will increasingly do so.

If, as it is often said, a picture is worth a thousand words, then a video is worth exponentially more.  Images have tremendous power to persuade, both in showing the truth and distorting it.  A video can be the single most compelling piece of evidence in a case, captivating the jury’s attention like no other evidence could.  Video can often convey what an oral description cannot – demeanor, personality, expressions, and motion, to name a few.

DOS, 2018 WL 1122368, at *1 (footnotes omitted).

First, we want to commend the defendant and its counsel in DOS for selectively using surveillance.  Quite apart from its cost, surveillance is a sharp, and double-edged sword.  It should only be used in cases like this one, where something in the plaintiff’s medical (or other) records provided a strong basis to believe that the plaintiff is exaggerating his/her injuries.  A smart plaintiff’s lawyer will seek discovery of surveillance material (most courts only require production after the plaintiff has been deposed), and if that discovery is allowed, will try to spin unsuccessful surveillance as confirmation of the plaintiff’s injury claims.

Now, back to DOS.  When surveillance videotapes are offered as evidence, the court has to at least look at them before deciding their admissibility.  Where, as in DOS, the trial court did not view the tapes, “the court could not have properly exercised its discretion” and “[w]e afford no deference.” Id. at *4.

Here, the trial court excluded the surveillance video despite never having viewed it.  Under these facts, that amounted to an abuse of discretion.

Id.  “[I]t is difficult for a trial judge to weigh the probative value of a video against the potentially unfair prejudice without first reviewing it.”  Id. (citation and quotation marks omitted).  “We hold that, as a general rule, a trial court should view video evidence before ruling on admissibility when the contents of the video are at issue.”  Id. at *5.  “Exceptions should be few and far between.”  Id.

Not only was the procedure an abuse of discretion, so was the exclusion itself.  “[A]ny countervailing concerns do not substantially outweigh the video’s probative value” under Rule 403.  Significantly, the court equated defense surveillance video with other types of video, such as plaintiff-side “day-in-the-life” films:

[I]t is important to note that in personal-injury cases, video footage of a plaintiff can originate not only, as here, from defense-initiated surveillance but also from plaintiff-prepared day-in-the-life videos and third-party sources like security cameras and eyewitnesses.  Many of the issues we discuss today can arise with any personal-injury plaintiff video, though each form also has its own particular concerns.  No matter the type of video, each case must be evaluated individually.

DOS, 2018 WL 1122368, at *6.  We know from personal experience that day-in-the-life videos are far more staged and edited than surveillance – since the plaintiff is intentionally performing – so any objection based on prejudicial editing should apply at least as strongly to plaintiff-offered video.  A “day-in-the-life” video depicting painful physical therapy is simply not representative where the plaintiff in fact spends most of the day parked in front of the TV in an opioid-induced haze.

Conversely, a surveillance video “can also undermine a plaintiff’s credibility if it suggests exaggeration or flat-out dishonesty regarding pain or abilities.”  Id. (footnote omitted).

The video, which depicted [plaintiff] doing physical activities he enjoys and which could have potentially been the basis for employment, on two consecutive days, is obviously probative. . . .  Moreover, [defendant] explicitly attacked [plaintiff’s] credibility, both as to the circumstances of his injury and whether he overstated the extent of his limitations and pain.  Seeing [plaintiff] on the video could have helped the jury evaluate his truthfulness.

Id. Nor could plaintiff’s concession that he “could” do the activities in the video render the evidence “cumulative.”  That ignores the power of the visual medium:

Videos, however, are qualitatively different than other types of evidence.  A video recording allows a more panoramic representation of the evidence than a document, testimony, or even a photograph.  The mere fact that [plaintiff] conceded he could [do what he was taped doing] does not automatically render a visual representation of him doing so cumulative.

Id. (footnotes omitted).

Nor is a surveillance video that damages the credibility of the plaintiff as a witness “unfairly prejudicial.”  “Mere damage to an opponent’s case does not constitute unfair prejudice.”  Id. at *7 (footnote omitted).  Showing that the plaintiff is not telling the truth is certainly “prejudicial,” but in no way is it “unfair.”

The video does not encourage the jury to decide on any improper basis, but rather on the basis that [plaintiff’s] condition is not as severe as he claims.  That is not unfair. . . .  Parties select what to record, or what part of a recording to show, to best help their case.  That is inherent in our adversarial system.  A video is not misleading just because it does not support the opponent’s view of the case.

DOS, 2018 WL 1122368, at *7 (footnote omitted).  Bias can be a problem, but bias is more of a problem in “day-in-the-life” films, where “the plaintiff is aware of being filmed, which may cause self-serving behavior, whether consciously or not.”  Id. at *8 (footnote omitted).  In DOS there was no evidence of any “improper filming,” and the private investigator “was available for deposition and at trial.”  Id.

Thus, under the probative/prejudice balance of Rule 403, “[t]he video’s probative value is significant, and concerns about cumulativeness, unfair prejudice, and misleading the jury do not substantially outweigh this value.”  Id.  Abuse of discretion on the merits, as well as the procedures.

The erroneous exclusion of the surveillance videotapes was also reversible error.  The court gave a lot of reasons in DOS for this conclusion.  See Id. at *8-9.  But for us it boils down to a jury being able to see the plaintiff for themselves “unaware of being recorded and thus with no incentive to exaggerate, [which] is qualitatively different than hearing his and his witnesses’ descriptions and would likely have had a powerful impact.”  Id. at *9.  Showing is almost always more persuasive than telling.

One of the (many) reasons that we detest aggregated litigation is that the defendant is almost always prevented by the sheer weight of numbers from giving each plaintiff’s case the work-up it deserves.  In a single plaintiff case, such as DOS, that work-up can well include surveillance.  Surveillance is a great tool for combatting malingerers trying to get something for nothing.  Every time such people get money from MDL settlements, our system of justice has failed.  Such plaintiffs getting money under false pretenses only adds to the costs of prescription medical products.

 

Until very recently, the only state high court decisions (from VA and DE) on our ediscovery for defendants cheat sheet involved sanctions against plaintiffs for destroying social media evidence.

No longer.

In Forman v. Henkin, ___ N.E.3d ___, 2018 WL 828101 (N.Y. Feb. 13, 2018), the New York Court of Appeals reaffirmed that discovery of plaintiff social media is available to defendants on the same basis as any other discovery, and put the kibosh on plaintiff-friendly discovery restrictions that had lower New York courts had developed to hamstring defendants seeking access to plaintiffs’ social media.

Forman was about as far from prescription medical product liability as one can get and still involve personal injury.  The plaintiff fell off a horse, was badly injured, and sued the owner of the horse. Forman, 2018 WL 828101, at *1.  Plaintiff, who claimed to have become “reclusive” following the accident, was a heavy social media user:

At her deposition, plaintiff stated that she previously had a Facebook account on which she posted “a lot” of photographs showing her pre-accident active lifestyle but that she deactivated the account about six months after the accident and could not recall whether any post-accident photographs were posted.

Id.  She also claimed to “ha[ve] difficulty using a computer and composing coherent messages” after her accident.  Id.  Thus, the relevance of plaintiff’s social media activities was as plain as the nose on that horse’s face.  After plaintiff testified to these facts, social media information confirming or refuting them, at minimum, bears on credibility, and goes to damages, as well – right?

Well…. Not as the Appellate Division saw the issue (note: only plaintiff appealed, so the issues being considered are somewhat narrow).  It limited disclosure only “to photographs posted on Facebook that plaintiff intended to introduce at trial” and “eliminate[ed] the authorization permitting defendant to obtain data relating to post-accident messages.”  Forman, 2018 WL 828101, at *2.  Why?   The Appellate Division held that unless the defendant could find something in plaintiff’s public social media suggesting a specific basis for additional discovery, the defendant had no right to any discovery from the plaintiff’s private social media:

[T]he Appellate Division . . . employ[ed] a heightened threshold for production of social media records that depends on what the account holder has chosen to share on the public portion of the account. . . .  Several courts applying this rule appear to have conditioned discovery of material on the “private” portion of a [social media] account on whether the party seeking disclosure demonstrated there was material in the “public” portion that tended to contradict the injured party’s allegations in some respect.

Id. at *4 (citations omitted).

The defendant argued that its right to discover relevant evidence under the control of an opposing party is not predicated on the legal equivalent of a snipe hunt.  Id.  Thankfully, the Court of Appeals “agree[d],” id., and threw out the Appellate Division’s made up impediment to ediscovery for defendants.  First, discovery is discovery, no matter who seeks it:

Disclosure in civil actions is generally governed by CPLR 3101(a), which directs: “[t]here shall be full disclosure of all matter material and necessary to the prosecution or defense of an action, regardless of the burden of proof.”  We have emphasized that the words material and necessary are to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy.

Id. at *2 (citation and quotation marks omitted).  New York recognizes only “three categories of protected materials” – “privileged matter,” “attorney[] work product,” and “trial preparation materials.”  Id.  A plaintiff’s (or defendant’s, for that matter) social media doesn’t fit in any of these categories.

Beyond the three categories, discovery may be limited if unduly “onerous.”  Id. at *3.  Discovery of photos actually posted by the plaintiff (with an exception for “nudity or romantic encounters” specified by the trial court) wasn’t “onerous” either, and plaintiff did not argue otherwise.  Id.

The Court of Appeals in Forman flatly rejected the plaintiff’s supposed precondition to social media discovery, recognizing that it would let plaintiffs hide the ball:

[A] threshold rule requiring that party [seeking discovery] to “identify relevant information in [the social media] account” effectively permits disclosure only in limited circumstances, allowing the account holder to unilaterally obstruct disclosure merely by manipulating “privacy” settings or curating the materials on the public portion of the account.  Under such an approach, disclosure turns on the extent to which some of the information sought is already accessible − and not, as it should, on whether it is “material and necessary to the prosecution or defense of an action.”

Forman, 2018 WL 828101, at *4 (citation, quotation marks and footnote omitted) (emphasis added).  Hear, hear.

Rather, the principle circumscribing social media discovery is the same as for all discovery – relevance to the theories and defenses of the particular case.  While blanket discovery of everything in every case, whether social media or otherwise, would be “onerous,” id., discovery tailored to the plaintiff’s claims and the defendant’s defenses is normal and proper:

[T]here is no need for a specialized or heightened factual predicate to avoid improper “fishing expeditions.”  In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the [social media] account.

Id. at *5.  Plaintiffs would have a chance to assert “any specific ‘privacy’ or other concerns” about the social media discovery being sought.  Id.  In “a personal injury case . . . it is appropriate to consider the nature of the underlying incident and the injuries claimed.”  “Temporal limitations may also be appropriate” so that social media “posted years before an accident” may not “be germane.”  Id.

The Court of Appeals also rejected the plaintiff’s argument that social media discovery “necessarily constitutes an unjustified invasion of privacy.”  No it doesn’t.  A plaintiff who brings a lawsuit necessarily waives privacy with respect to evidence relevant to that action.

We assume . . . that some materials on a [social media] account may fairly be characterized as private.  But even private materials may be subject to discovery if they are relevant.  For example, medical records enjoy protection in many contexts under the physician-patient privilege.  But when a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records − including the physician-patient privilege − are waived.  For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.

Forman, 2018 WL 828101, at *5 (citation omitted) (emphasis added).  We note that one of the omitted citations is to Arons v. Jutkowitz, 880 N.E.2d 831 (N.Y. 2007), the decision confirming defendants’ right to informal interviews with treating physicians in New York, which we blogged about, here).

In short, plaintiffs who don’t want to produce their social media shouldn’t be plaintiffs.  If you can’t stand the heat, get out of the courtroom.

Thus, it was “err[or]” to condition discovery of “private” social media on what a plaintiff might, or might not, have done on public social media.  The Appellate Division had “effectively denied disclosure of any evidence potentially relevant to the defense.”  Id. at *5 n.6.  Rather, plaintiff’s testimony about her social media activities “more than met [any] threshold burden of showing that plaintiff’s Facebook account was reasonably likely to yield relevant evidence.”  Id. at *5.  Any photos of plaintiff’s activities “might be reflective of her post-accident activities and/or limitations.”  Id.  Further, “data revealing the timing and number of characters in posted messages would be relevant to plaintiffs’ claim that she suffered cognitive injuries that caused her to have difficulty writing and using the computer.”  Id. at *6.

Forman thus confirms what we have always thought – anything a plaintiff puts on social media is fair game for discovery, to the same extent as any other information under the plaintiff’s custody and control.  Decisions that seek to impose additional limitations on social media discovery, because social media is somehow different or more private, are wrongly decided.

Today’s guest post is by Reed Smith‘s Lisa Baird, who has written about her recent experience with mandatory initial discovery, as practiced in a “Pilot Project” in place in certain federal district courts.  It was interesting – in the “stop and think before you remove to federal court” sense of interesting.  As always our guest posters deserve 100% of the credit, and any blame, for their guest posts.  The floor is yours, Lisa.

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Last summer, my firm’s clients faced two matters filed in rapid succession in the District of Arizona and the Northern District of Illinois.  As luck would have it, these are the only two districts participating in the Federal Judicial Center’s Mandatory Initial Discovery Pilot Project (MIDPP), and that meant we were in for a bit of a surprise.

When the pilot project first was announced in April 2017, it received a smattering of attention in the legal press before seemingly fading from view.  So you may be asking yourself (as I did), what is the MIDPP?   The short answer is that, in the adopting courts, it has worked significant changes to the Federal Rules of Civil Procedure regarding discovery and responsive pleading without following the usual procedures for rules amendments.  It also has up-ended the important principle from Ashcroft v. Iqbal, 556 U.S. 662 (2009), that an inadequate complaint “does not unlock the doors of discovery.”

Some important takeaways about the MIDPP are that:

  • Answers must be filed even if a motion to dismiss “or other preliminary motion” has been or will be filed, unless the court defers the responsive pleading deadline “for good cause” and the motion to dismiss is on one of three specified grounds: (1) lack of subject matter or personal jurisdiction; (2) sovereign immunity; or (3) absolute or qualified immunity of a public official.
  • Mandatory initial disclosures—which supersede the initial disclosures otherwise required by Federal Rule of Civil Procedure 26(a)(1)—are due within 30 days of the response to the complaint.  A 30-day extension of this deadline is provided for only if the parties certify that they have a good faith belief the case will settle within that additional 30-day period.
  • The MIDPP’s mandatory initial disclosures include:
      • Names and contact information for persons likely to have discoverable information, along with a description of the information they are believed to possess;
      • Written or recorded witness statements, unless privilege or work product is asserted;
      • A list of documents, electronically stored information (ESI), and tangible things that may be relevant and are known to exist, regardless of who possesses them; and
      • A statement of facts relevant to each claim or defense “and the legal theories upon which it is based.”
  • All hard copy documents and ESI falling within the subject matter of the initial disclosures must be produced within 40 days after service of the initial disclosures themselves “unless the court orders otherwise.”  In other words, ESI usually will have to be produced about 90 days after service of the complaint (service date + 21 days for responsive pleading + 30 days for mandatory initial disclosures + 40 days to make ESI production).
  • The parties have a continuing duty to supplement their productions within 30 days of the discovery of any new ESI.
  • Parties must disclose “facts relevant to the claims and defenses in the case, whether favorable or unfavorable, and regardless of whether they intend to use the information in presenting their claims or defenses.”

Make no mistake:  the discovery and answering obligations imposed by the MIDPP are onerous and there is little flexibility in the model documents as written.  In practice, it appears that individual judges sometimes are willing to exercise discretion to continue the “mandatory” deadlines when reason and good judgment dictate doing so, even though the MIDPP contemplates only limited extensions in very narrow circumstances.  Given that one of the initial messages about the MIDPP was that its requirements were mandatory and parties could not opt out of the required initial disclosures, however, it probably would be best not to count on routine extensions or exceptions.

The stated purpose behind the MIDPP certainly is laudable enough: reducing cost and delay in litigation.  But the net effect in more complex cases—such as product liability actions filed against drug and medical device manufacturers—may be the opposite.

In drug and device product liability litigation, discovery burdens are unequal and fall more heavily on defendants, and there is no reason to think that will change under the MIDPP.  Moreover, motions to dismiss are an essential tool for reducing costs and speeding up case resolution in drug and device cases because of unique, dispositive issues such as preemption.  Yet because the MIDPP forces the parties into immediate, extensive, mandatory discovery and forces the defendant to answer before any motion to dismiss is heard or decided, sweeping litigation may be well underway before the court decides that the case lacks sufficient merit to proceed.

For example, manufacturers of medical devices with premarket approval rely heavily on Riegel v. Medtronic, Inc., 552 U.S. 312 (2008), and the often-dispositive issue of preemption.  But the MIDPP forces these defendants to engage in early, mandatory discovery and to file an answer the complaint, even when the defendant’s preemption-based motion to dismiss is pending and likely dispositive of the lawsuit.

Perhaps the only silver lining for drug and device manufacturers is that MDL-bound cases are among the few types of civil cases excluded from the MIDPP.

For those interested in the details, the District of Arizona rolled out its MIDPP for cases filed on or after May 1, 2017 though General Order 17-08, and the Northern District of Illinois rolled it out for cases filed on or after June 1, 2017 (and assigned to participating judges) through General Order 17-2005 and a Standing Order.  There also are users’ manuals for both courts (D. Ariz. and N.D. Ill.) as well as checklists (D. Ariz. and N.D. Ill.).  This pilot project is meant to last three years, and so far it is limited to these two districts.

Surely there is room for improvement, however.  If not wholesale revisions that acknowledge the Supreme Court’s pronouncement in Iqbal that the “doors of discovery” do not unlock for a deficient complaint, then perhaps an expansion of the lists of motions which defer the duties to answer and provide the mandatory discovery.  Or a provision allowing the parties to agree that the deadlines should be delayed in a given case, when a potentially meritorious motion to dismiss is pending.  Or explicit recognition that courts may extend the deadlines for answering and providing mandatory discovery in their discretion.  Or, if getting on with it is so important, then a companion requirement for expedited motions to dismiss so that they can be briefed and ruled on before any duty to answer and provide mandatory discovery arises.

The Federal Judicial Center suggests providing comments about the MIDPP (or any other civil procedure issue) to the Committee on Rules of Practice & Procedure for the U.S. Courts at its email address.  The District of Arizona has an email box for providing comments to that court; it also has an annual conference on March 9, 2018, and one would think the MIDPP would be a central topic of discussion during the civil breakout session.  The Northern District of Illinois has an email box for comments on proposed amendments to the local rules, and although that email address is not identified as being for the MIDPP specifically, one would think that it would work for that purpose as well.

When Congress enacted HIPAA and its Privacy Rule in the mid-1990s, it was a big deal. Healthcare providers surely protected patient privacy in the pre-HIPAA days, but the federal statute gave them a standard set of rules with which to comply and a uniform referent against which to gauge their privacy practices.  All told, HIPAA’s impact has been both pervasive and positive.  Moreover, one of its lasting virtues is that, because the statute created no private right of action, you can’t get sued under HIPAA.

At least not directly. A plaintiff cannot file a complaint outwardly claiming damages for a “HIPAA violation,” but that has not stopped some state courts from permitting negligence claims using HIPAA to define a standard of care.  The latest is Connecticut, whose Supreme Court recently created the new tort of “unauthorized disclosure of confidential information.”

The case is Byrne v. Avery Center for Obstetrics and Gynecology, P.C., 327 Conn. 540 (2018) (to be published in A.3d), and its outcome will give healthcare providers in Connecticut even greater pause when producing medical records in litigation.  In Byrne, the plaintiff/patient instructed the defendant healthcare provider not to release her medical records to her ex-boyfriend, who later filed a paternity action against the plaintiff. Id. at 542.  The defendant healthcare provider then received a third-party subpoena in the paternity action ordering a records custodian to appear and produce the patient’s medical records, which the provider did by mailing records directly to the court a few days later. Id.

This is where Connecticut’s new tort comes in. Alleging that her ex-boyfriend viewed her records in the court file and then harassed her, the patient sued her doctor for breach of contract and negligence in multiple forms. Id. at 543-44.  The trial court ruled initially that the negligence claims were preempted because the plaintiff was using HIPAA as the basis for her claims. Id. at 544-545.  The Connecticut Supreme Court, however, reversed that order in 2014 and held that HIPAA did not preempt the claims.  Given the purpose of HIPAA—i.e., to enact uniform rules—and the transparent nature of the plaintiff’s effort to enforce HIPAA through civil litigation that the statute does not permit, we would have criticized this ruling had we written on it when it came out in 2014.

But that is not today’s story. On remand, the trial court again ruled for the defendant and granted summary judgment on the basis that Connecticut law did not recognize a common law claim for breach of physician confidentiality. Id. at 548.  On appeal, the Connecticut Supreme Court filled that gap:

We conclude that recognizing a cause of action for the breach of the duty of confidentiality in the physician-patient relationship by the disclosure of medical information is not barred by [Connecticut statutes] or HIPAA and that public policy, as viewed in a majority of other jurisdictions that have addressed the issue, supports that recognition.

Id. at 550. So Connecticut patients not only can sue their doctors now for negligently disclosing their medical information, but can do so for responding to a subpoena in a pending legal action.

The core of the opinion examines both federal law and other states’ laws to conclude that the “majority” support the new cause of action. On federal law, the Court held that HIPAA supported a common law claim because Connecticut doctors follow HIPAA anyway and that a state-law tort would support HIPAA:

We further conclude that, to the extent it has become common practice for Connecticut health care providers to follow the procedures required under HIPAA in rendering services to their patients, HIPAA and its implementing regulations may be utilized to inform the standard of care applicable to such claims arising from allegations of negligence in the disclosure of patients’ medical records pursuant to a subpoena.

. . . [N]egligence claims in state courts support at least one of HIPAA’s goals by establishing another disincentive to wrongfully disclose a patient’s health care record.

Id. at *556-57.

As for other states’ laws, the Court surveyed state cases and found eight states that recognized comparable claims (although the one case cited from New York does not really say that) and four that did not. Id. at 557-68.  In following the states that have recognized the tort, the Court cited various sources for the duty, including state licensing statutes, evidentiary rules governing privileged communications, common law “principles of trust,” and the Hippocratic Oath. Id. at 564.

We have a few questions about this new tort. First, it is highly questionable to cite federal law as “supporting” a civil action with HIPAA defining the standard of care.  As even the Connecticut Supreme Court acknowledged, “It is by now well settled that the statutory structure of HIPAA . . . precludes implication of a private right of action.” Id. at 555.  Having recognized this principle on the one hand, the Court should not have invoked HIPAA to support its new private right of action on the other.

Second, it stands out that the Court spent about nine pages discussing the state authorities that support its position, but dismissed the four states that reject the tort in a single paragraph and a single sentence of analysis: “[Connecticut statutes] created a broad physician-patient privilege, and, therefore, the rationale of these jurisdictions that decline to recognize a common-law action for breach of duty of confidentiality is not persuasive in Connecticut.” Id. at 567.  More discussion of the contra authorities would have been helpful, especially considering that Connecticut is not unique in recognizing a physician-patient privilege.

Third, what are healthcare providers supposed to do? The ex-boyfriend served a subpoena, a court-issued document that millions of litigants rely on every day to obtain documents—including medical records.  The Connecticut Supreme Court’s first reaction is to denigrate subpoenas.  Connecticut law allows disclosure of medical records without patient consent only pursuant to “statute or regulation of any state agency or the rules of court.” Id. at 568.  According to the Court, a “subpoena without a court order” is none of those things. Id. That leaves us scratching our heads, because subpoenas in our home state and also in federal court are authorized by statute and/or court rules.  We would be surprised if the law of Connecticut were different.

The Court also placed great weight on the fact that the healthcare provider did not appear in person to produce the records and did not alert the patient/plaintiff or move to quash. Id. at 569-72.  But even though subpoenas routinely order record custodians to “appear” with records, they almost never do.  They make the records available for copying, or they mail them, which is what the healthcare provider did here.  This strikes us as creating a new cause of action on the back of a technicality.  As for the requirement that the provider alert the plaintiff or seek a judicial remedy, the Court cited federal regulations.  So now we are back to enforcing HIPAA.

We sometimes advocate for a high regulation, low litigation approach to product liability, and that approach particularly suits the protection of private information. Healthcare providers take patient privacy seriously, and when pulled involuntarily into litigation, the rules they need to follow ought to be clear.  Connecticut’s new tort does not advance that cause.

We update our cheat sheet devoted to ediscovery for defendants differently than the others.  Because of the broad nature of the topic – these cases arise in a wide variety of non-drug/device contexts – other personal injury, employment, civil rights, occasionally even criminal litigation.  That means we have to research them separately to find what we need to include.  That is more taxing than our usual routine because it means looking through hundreds of cases to find the ones that are:  (1) on point, and (2) favorable to our side of the “v.”  Thus, it has been a while since we last updated, but we just did it now.  The new opinions are below, and every one of them either allows access to a plaintiff’s social media activity or imposes sanctions (often for spoliation) on plaintiff for resisting such discovery.

Once again, although we’ve read all the relevant social media discovery cases, we include only the good ones – because we don’t believe in doing the other side’s research for them.  A couple of words to the wise arising from the rest are appropriate.  First and foremost, if you’re representing a defendant and are considering making a broad request for social media discovery at the very outset of the case – DON’T.  Without anything more solid than generalized suspicions as reason for a deep dive into an opponent’s social media, courts are not impressed and are likely to treat it as a “fishing expedition.”  Most of the time a blanket social media discovery demand will succeed only when the defendant has caught the plaintiff in a lie – with contradictory public social media evidence − or the plaintiff has attempted to delete or otherwise hide social media activity.  The key word is “investigate.”  Once the tip of the spear penetrates a plaintiff’s shenanigans, the rest follows more easily.

Second, in the absence of such hard evidence, the defense is well advised to start small, with less intrusive discovery.  Instead of asking for everything at once, check with an ediscovery specialist and consider proposing sampling – 5% or 10% of all posts – as something less intrusive, but statistically likely to find contradictory evidence if it exists.  An active social media user (the type most likely to generate useful information) will usually have published thousands of posts and other types of entries.  In that situation, sampling is very likely to reveal something significant present in a plaintiff’s social media.  The sampling can then support a broader discovery demand.

With those caveats, here is the latest favorable set of cases in which defendants have successfully engaged in discovery of plaintiffs’ electronic activities:

  • Shawe v. Elting, 157 A.3d 142 (Del. Feb. 13, 2017). Plaintiff properly sanctioned for deliberate and reckless deleting email and text messages by being ordered not only to pay all expenses of recovery but also a percentage of defendant’s total counsel fees, due to the spoliation complicating the conduct of the litigation general.
  • State v. Johnson, 2017 WL 1364136 (Tenn. Crim. App. April 12, 2017). Although the Shared Communications Act prohibited criminal defendants from obtaining a witness’ social media content from social media platforms, the defendant had established good cause to obtain such evidence directly from the witnesses who were social media users. They are not privileged. The subpoenae to the witnesses were not oppressive.
  • Lawrence v. Rocktenn CP LLC, 2017 WL 2951624 (Mag. W.D. La. April 19, 2017). Plaintiff must produce all text messages, photographs and videos that concern: (1) plaintiff’s physical capabilities; (2) that allegations in the complaint; (3) emotional distress; (4) any decline in plaintiff’s marriage; (5) alternative causes of the injuries; and (f) plaintiff’s activities during the claimed period of disability.
  • Flowers v. City of New York, 55 N.Y.S.3d 51 (N.Y. App. Div. June 20, 2017). Evidence from plaintiff’s public social media contradicted the plaintiff, thereby justifying discovery from plaintiff’s private social media accounts, including deleted material, relating to the same subject matter. Plaintiff shall provide a release to obtain material, including metadata, from the provider.
  • Walker v. Carter, 2017 WL 3668585 (S.D.N.Y. July 12, 2017). Plaintiff sanctioned for failure to produce relevant text messages. Must pay defendant’s increased attorney’s fees.
  • Ottoson v. SMBC Leasing & Finance, Inc., ___ F. Supp.3d ___, 2017 WL 2992726 (S.D.N.Y. July 13, 2017). Plaintiff sanctioned for failure to preserve text messages and emails concerning the events at issue. The jury will be instructed on an adverse spoliation inference.
  • Jones v. U.S. Border Patrol Agent Gerardo Hernandez, 2017 WL 3525259 (Mag. S.D. Cal. Aug. 16, 2017). Plaintiff must produce a GPS-based map generated by his fitness watch.
  • Ehrenberg v. State Farm Mutual Automobile Insurance Co., 2017 WL 3582487 (Mag. E.D. La. Aug. 18, 2017). With respect to social media, plaintiffs must produce posts and photos: (1) relating to the accident, (2) relating to all physical injuries whether or not caused by the accident, (3) reflecting plaintiff’s physical activity, (4) relating to plaintiff’s emotional distress; (5) relating to alternative emotional stressors; (6) concerning plaintiff’s vacations.
  • Calleros v. Rural Metro, Inc., 2017 WL 4391714 (Mag. S.D. Cal. Oct. 3, 2017). In class action over alleged deprivation of rest breaks, defendant is entitled to social media discovery of any activity plaintiffs engaged in while on company time.