The latest report in the In re Opioid litigations is a sharp reminder not to fall short in your disclosure obligations

When it rains it pours. The ongoing saga of disclosure disputes in the many In re Opioid litigations started a new chapter with the release of a Report (referenced below) by former Justice Maltese, acting as Referee in a New York state court Opioid case.

The Report, which sketches out a series of discovery mishaps and omissions stretching across multiple courts and cases, as well as some apparent sharp dealing by defense counsel, is a strong reminder to be thorough and exercise independent judgment in fulfilling discovery obligations. In particular in mega-litigations such as the In re Opioid matters, even the smallest discovery disputes may be weaponized. Plaintiffs are actively looking for opportunities to attack defendants for discovery irregularities, and often seeking the extreme sanctions when they do. Outside counsel for defendants are not out of the line of fire. Here, because the defendant resolved the underlying case before the Report was released, Justice Maltese’s hammer largely fell on defense counsel for counsel’s, client’s and discovery vendor’s mistakes leading to the belated production of relevant interview notes, and what the court viewed as related gamesmanship.

The Report (at 18-19) briefly discusses the aggrieving conduct, finding that

  • the interview notes at issue were first produced a year earlier by the same outside counsel before trial in a Tennessee Opioid case, but not produced in the NY state action until after trial started – to plaintiffs’ prejudice,
  • client/counsel had been criticized by that Tennessee court for willful withholding and evasive/incomplete explanations, leading to a default judgement in that case, and
  • the same law firm then produced the same documents to a federal court and unceremoniously “slipped” voluminous documents into the federal MDL database, “perhaps in the hope that the plaintiffs’ counsel was [too] preoccupied with the ongoing trial to notice them.” All of this was before the documents were brought to the attention of the court/plaintiffs in the NY litigation.

While the Report is not overly detailed, Justice Maltese clearly concluded that counsel was insufficiently diligent in supplementing discovery responses and that counsel failed to be forthcoming about the belated disclosures. The Referee recommended that the Court award costs/fees to plaintiffs relating to their prosecution of the motions and to consider monetary sanctions against the law firm.  However, Justice Maltese avoided recommending more serious sanctions requested by Plaintiffs, such as disqualifying lead counsel, disqualifying or sanctioning defendant’s national discovery counsel, requiring disgorgement of fees, or referring an attorney admitted pro hac vice in the case to State bar authorities for discipline.  This suggests the Referee did not find consider that counsel acted in bad faith.

This is not the final chapter. The Court may reject or modify the Report when issuing the decision. There also are similar allegations of discovery failures by this same client/outside counsel being considered by other courts, who may go different directions. Some evident take-aways even at this stage are as follows:

  • Carefully consider your obligations to supplement discovery responses in light of changed events. This is particularly important in complex litigations that may involve multiple productions and forums and extended time frames, where new revelations are to be expected.
  • Don’t been too tricky in your disclosures. Burying an explosive late-produced document in one of many MDL productions may strike the court as too cute by half in weighing a sanctions motion.
  • You cannot rely on a court cutting you slack because the case is very complicated, with many moving parts. Even though the records at issue were over 30 years old, initially produced a decade ago in another litigation that did not involve Opioids. belatedly remembered and found in an old box of CDs among 10’s of thousands of other files. and initially mismarked by vendor as non-responsive, the Referee showed no sympathy. Case specific claims of prejudice will be seen by the court as more important than a high discovery batting average across a portfolio of matters.
  • Discovery carries risk. Don’t hesitate to bring in experienced discovery counsel. This is a specialized area where it is easy to get carried out of your depth. It is hard enough keeping track of the merits, much less coordinating the minutia and mania of modern discovery.