Confidentiality

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Fifty-seven years ago the Music Died.  On Feb 3, 1959, a small aircraft carrying rock and roll legends Buddy Holly (“Everyday,” ”It’s So Easy,” “Peggy Sue,” and a whole lot of other, crucial early rock and roll tunes), Ritchie Valens (“La Bamba,” “Come On, Let’s Go”), and J.P. Richardson, aka the Big Bopper (“Chantilly Lace”) crashed in Clear Lake, Iowa.  It is the precipitating event in Don McLean’s eight and a half minute 1971 pop hit “American Pie.”  (Hence, “But February made me shiver/with every paper I’d deliver/bad news on the doorstep/I couldn’t take one more step.”) The plane was a four-seater, so only three passengers could join the pilot for the short flight to the next stop, which was  Moorhead, Minnesota – through a blizzard.  One of Holly’s backing musicians, Waylon Jennings, was also supposed to be on the plane, but he gave up his seat to the Big Bopper, who was suffering from the flu.  In some versions of the story, Jennings lost a coin toss.  But that is not the story on the official Waylon Jennings website.  In any event, Jennings rode the bus.  As a result, he lived another 43 years.  Fate gave Jennings a second chance.  He didn’t waste it.  Jennings had a fine career as an outlaw C&W star. His catalogue is impressive:  “Luckenbach, Texas,” “Are You Sure Hank Done it this Way, “ “Mamas, Don’t Let Your Babies Grow Up to be Cowboys,” and many more.  Jennings was also the balladeer/narrator on the Dukes of Hazzard tv show.

Jennings was also for a while part of a supergroup called The Highwaymen, which included a few other fellas you might have heard of:  Johnny Cash, Willie Nelson, and Kris Kristofferson.  And now our little account must take a legal detour.  There was an earlier musical group called The Highwaymen.  Some Wesleyan students got together to perform folk music.  Turns out they were pretty good.  They had a hit record in 1961 with their version of “Michael, Row the Boat Ashore.”  Those original Highwaymen were an impressive lot.  Several went on to graduate school.  Stephen Trott was one of the Highwaymen.  He attended Harvard Law School, became a prosecutor, and later became a Ninth Circuit Judge.  So maybe it’s not much of a surprise that these original, collegiate Highwaymen filed a lawsuit against Waylon, Willie, et al. for appropriating their group’s name.  Like most cases, it settled.  Unlike most cases, the settlement included a provision permitting the original Highwaymen to share the stage with the more famous folks during a 1990 concert in Hollywood.

Back to the main branch of our story.  Maybe Jennings never quite entered the pantheon alongside Holly.  Or maybe he did.  Either way, he did okay.  He used his second chance well.

Holly, of course, was a genuine musical genius and had attained stardom by 1959.  Jennings back then was a sometime dj and sometime musician who had been given a big break when Holly invited him along on the Winter Dance Party tour.  As the musicians gathered outside that little plane on that cold, blustery Iowa night, Holly jokingly told Jennings he hoped the bus would break down and that Jennings would freeze.  Just as jokingly, Jennings said, “I hope your ol’ plane crashes.”  Understandably, Waylon was always haunted by that near miss back in 1959.  You can see a video of Jennings telling the story here.

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Today’s case is about a second chance.

We are talking about the dismal topic of document confidentiality.  Many — definitely too many — documents are produced in mass tort litigations.  Almost all those documents are produced by the corporate defendants.  Most end up having nothing to do with the case.  If two million documents are produced in an MDL, fewer than 200 are likely ever to be marked as exhibits at trial.  But producing all those documents is wickedly expensive for the company, a lot say things that no company would want to become public, so what the hey, why shouldn’t the plaintiff lawyers have a little fun?  A lot of those documents involve proprietary information about marketing, pricing, new avenues of scientific research, etc. – all things that a competitor would enjoy reading.  (We remember a professor in law school suggesting that companies wishing to engage in joint-pricing arrangements would be smart to file bogus law suits against each other occasionally and then use document discovery as a way of learning, and then coordinating, pricing strategies.  Yes, our law school had as many cynics
as scholars.)…

Continue Reading New Jersey Federal Judge Says It’s Not So Easy to Preserve Confidentiality of Discovery Documents

This post come from the non-Reed Smith side of this blog.

Courthouses are public buildings filled with publically-paid employees and courtrooms run by public officials who are often publically elected. Litigating in a court of law is a public event.  As the 7th Circuit put it:

People who want secrecy should opt for arbitration.  When they call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials.  Judicial proceedings are public rather than private property.

Union Oil Co. v. Leavell, 220 F.3d 562 (7th Cir. 2000). And so our clients often find themselves engaged in difficult court battles to protect confidential, business-sensitive information from public disclosure.  The difficulty increases in mass torts, which involve multiple courthouses and jurisdictions.

We recently saw a decision in a mass tort that addressed one such battle.  In Beavers v. Medtronic, Inc., 2014 WL 7882099 (D. Hi. June 20, 2014), an Infuse Bone Graft plaintiff refused to agree to a confidentiality order that would restrict her use of Medtronic confidential material to only that litigation.  She wanted to “share” the material with other plaintiffs in collateral litigation in other courts.  Id. at *2.…

Continue Reading The Treatment of Confidential Material across Collateral Litigation

You all know this is a defense blog.  You all know we focus on defense victories.  So, it shouldn’t be surprising that when a defense win comes at the hands of some questionable calculations (or miscalculations) by plaintiffs’ counsel, we find it blog worthy.  (Stay tuned, we have another one for you tomorrow too.)

The…

            In the drug and device arena, we are well versed in confidentiality agreements.  In fact, we can’t recall a drug or device products case that hasn’t involved some form of confidentiality order.  And that’s not surprising.  Plaintiffs sue our clients making serious allegations about their products, their marketing and labeling, their manufacture and design,

…

Being invisible would be cool.  We all know that.  You could do things that you would otherwise be afraid or unable to do.  And no one would see you do it.  You’re hidden from criticism, retaliation and embarrassment.  It’s such an alluring idea that it has shown up in literature for thousands of years.  It’s in The Republic.  There’s H.G. Wells’ The Invisible Man.  The Lord of the Rings and Harry Potter had it.  Wonder Woman had an awesome invisible plane, though we never quite understood the advantage of an invisible plane while everything inside it, including the pilot, was visible.  Maybe it looks like the pilot can fly, which is obviously very cool.

A theme running through much of the literature, however, is that invisibility can corrupt.  In The Lord of the Rings, putting on the ring makes you invisible but also rots your soul and makes you visible to the evil that is coming for you.  In The Republic, a man with an invisibility ring is used as support for the argument that a person who can do injustice without ramifications will do it.

But the purpose of the Courts is to do justice.  To promote this goal, the public has a strong interest in the courts being an open forum with parties identified by name.  The courts don’t see invisibility as cool.  They see it as an invitation to corruption.  So we see in our everyday practice of law real names on both sides of the “v.”  Now, sometimes there’s a John or a Jane Doe, but we know that those are there as placeholders until the actual party is identified and then named.

This leads us to the recent decision in Doe v. Merck & Co., No. 11-cv-02680-RBJ-KLM (D. Colo. Feb. 17, 2012), a products liability action in which the plaintiff claimed that the drug Propecia, used to treat baldness, caused him significant sexual problems.  Given the “highly sensitive, intimate and personal nature” of the alleged side effects, the plaintiff brought a motion seeking to proceed anonymously.  Slip op. at 3.

Requests to proceed in court anonymously are rare.  We haven’t seen much of it.  The court noted that “[p]roceeding under a pseudonym in federal court is, by all accounts, unusual.”  Slip Op. at 2.  The Federal Rules of Civil Procedure don’t provide for it.  In fact, FRCP 10(a) requires that a complaint “name all the parties,” and FRCP 17(a) requires the action be prosecuted “in the name of the real party in interest.”  Id. at 2.  This is all to say that there is a presumption of open court proceedings and that the public has an interest in knowing the identities of those who use the courts.

In addressing plaintiff’s motion, the Court, considered the circumstances, including whether the plaintiff was a minor or was threatened with physical harm by proceeding under his name.  Importantly, the court also had to consider whether allowing the plaintiff to proceed anonymously would create “a unique threat of fundamental unfairness to the defendant.”  Id. at 4.
Continue Reading Invisibility and the Courts

If you surveyed lawyers of all stripes involved in tort litigation, you would probably find that the overwhelming majority hate insurance companies. Plaintiffs’ lawyers, of course, hate them because insurance companies won’t give them all the money they want. Defense lawyers who seek coverage for claims against their clients hate it when insurance companies deny…

Here’s how a typical mass tort oral argument goes. No matter whose motion it is, the plaintiffs’ lawyers beat us to the lectern and deliver a Faulknerian riff about how awful our clients are (kicking dogs, blowing up the old folks home, lurking on the grassy knoll in Dallas in 1963, etc). If the plaintiffs’ lawyers momentarily allude to the matter at hand, it comes as a genuine surprise. It’s sort of like when the great American playwright George S. Kaufman would sit backstage while the Marx Brothers were performing in one of his plays, and Kaufman would be heard sporadically to mumble, “Wait – that last line is actually in the script.”

Eventually we get a chance to slip in a few words about the pertinent cases, policy, and facts. And then we sit down. What happens next? Before the judge can offer a homily about how the parties should work things out and spare the court the need to, you know, decide something, other plaintiff lawyers march to the microphone to emphasize again how horrible the defense side (both clients and lawyers) is. Think back to the scene early in Blazing Saddles, where genuine Western gibberish is followed by a chorus of a bunch of guys harumphing that “Johnson is right!”

That’s how it felt to us after we penned a little ditty criticizing a motion by Aredia/Zometa plaintiffs to undo a protective order. We didn’t much care for the plaintiffs’ maneuvering to get broad-based discovery after agreeing to a protective order, then griping about alleged over designation of confidential documents attached to motions, and then asking for elimination of confidentiality protections for all documents, not just those attached to the motions. Along the way, we offered a few bromides about how plaintiff lawyers abuse the whole confidentiality process, ramping up expenses and seeking to use the confidential documents as extra-legal leverage. Pretty tame stuff. Who could disagree?

Believe it or not there are a couple of plaintiff blogs out there every bit as brilliant and charming and poetic as this one. And they pummeled us. First, Ronald Miller at the Drug Recall Lawyer Blog said it was a case of the “Pot Calling the Kettle Black,” and that it was really defense lawyers who abuse the confidentiality process and seek to run up expenses.…

Continue Reading Confidentiality: We’re Telling You for the Last Time

While strolling on the boardwalk at the Jersey Shore this Summer, we saw the usual array of tacky t-shirts: Sopranos, Yankees (yuck), and lots of silly double entendres. This time, we also saw a t-shirt that said “Come at Me Bro.” Having no idea what that meant, we turned to the ultimate authority…

We trust that you are familiar with the typical life-cycle of confidentiality protective orders in mass tort litigation. It is as predictable (and maudlin) as an ABC after-school special. It invariably begins with plaintiffs seeking discovery of millions of pages of internal company documents. Mind you, the plaintiffs will never use more than one percent…

Confidentiality issues often arise in drug and device cases, usually when plaintiff lawyers want to send confidential company documents to the New York Times. But every once in a while it’s the plaintiffs who get impaled on the issue. That’s what happened in In re Viagra Products Liability Litigation, MDL No. 06-1724, slip op. (D. Minn. April 14, 2010). Pfizer had earlier been unable to knock out one of plaintiffs’ general causation experts on Daubert grounds because the court had been sufficiently impressed by a peer reviewed article by that expert on the issue in question (whether Viagra caused a certain vision disorder).

But mass torts have their ups and downs, and Pfizer followed up in a very smart way. It used discovery to obtain from the University of Alabama-Birmingham (“UAB”) the source documents underlying the article. Guess what? The article wasn’t quite as rigorous as it seemed. As we discussed here, the article had misrepresented some pretty key findings and methodologies. The expert had even labeled some subjects as “exposed” when they were, in fact, “unexposed.” Kind of important, don’t you think?

Last August the court found that the new information showed that the expert’s study was unreliable (to put it charitably), and that “[p]eer review and publication mean little if a study is not based on accurate underlying data.” What happened here is something that should keep journal editors up at night. In any event, so much for that expert.…

Continue Reading Hard Cases Sometimes Make Good Law