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