Thursday, November 17, 2011

Hip Checked – Plaintiffs’ Ediscovery Ploy Rebuffed In New Jersey

Ediscovery is dreadfully expensive.  Plaintiffs are dedicated to keeping it that way, as they know that anything that drives up a defendant’s litigation costs (and mass tort ediscovery falls disproportionately on defendants) increases the settlement value of even meritless cases – and any mass tort has lots of meritless cases.

All too often judges, not wanting to get bogged down in the technical details of ediscovery (which is 99% of it), let the plaintiffs get away with running up the defendants tab.

But occasionally, even the judges get fed up with the obvious churning that goes on in ediscovery.

That’s what happened in In re DePuy ASR™ Hip Implants Litigation, No. BER-L-3971-11, slip op. (N.J. Super. Oct. 18, 2011).  In the course of telling rogue plaintiffs that they had gotten all the ediscovery they were going to get, the ASR court also struck a blow for federal-state coordination in mass tort cases, which makes this relatively short opinion doubly notable.

As is often the case with mass torts, there are parallel actions involving the ASR hip implant, a federal MDL and also a bunch of plaintiffs who managed to stay out of federal court by taking advantage of the “forum defendant” loophole to diversity jurisdiction.  In New Jersey, such state-court plaintiffs are aggregated in that state’s own mass tort program.

As also often happens, the federal ASR MDL was quicker out of the blocks. The federal plaintiffs and defendants got together and hammered out an ediscovery protocol.  Under that protocol, the defendant produced over 10,000,000 pages of electronic documents – more than any litigant (or probably group of litigants) could possibly hope to read.  All of this was done in strict accordance with the federal MDL agreement, which specified the formats and compatibilities that the production had to take.

Back in New Jersey state court, however, some plaintiffs decided that they didn’t like the federal protocol. At a cost of over $1,000,000 (to which, of course, these plaintiffs were not about to contribute a dime), they demanded a do-over with a different format, compatible with different (they claimed, cheaper) software.

The court said no.  The federal MDL protocol was the product of extensive negotiations, and was good enough for New Jersey as well.  It is important to coordinate federal and state mass tort litigation involving the same product:

[T]his Court is committed to the coordination of this litigation not only with the MDL but also with other jurisdictions. . . .  The Manual For Complex Litigation (Fourth) §20.31 (2009) . . . encourages cooperation by and between MDL and State Court judges. . . .  Furthermore, the Manual states "Federal and State Court Judges frequently cooperate informally and effectively to coordinate discovery and pre-trial proceedings in mass tort cases." Id. at §22.4.  The New Jersey Mass Tort (non-asbestos) Resource Book, (3d. Ed.), November 2007, embraces this concept. . . .  This Court is satisfied that the MDL Protocol is reasonable.  It is clear that the MDL Protocol is the result of a "give and take" by and between highly skilled counsel in the MDL and other State court jurisdictions.  The MDL Protocol is not the format initially proposed by defense counsel but, as indicated above, presents a reasonable accommodation after negotiations by and between counsel, all of whom were on equal footing. . . .  To permit or otherwise Order a format unique to New Jersey would cause an undue hardship on the Defendants . . ., [and] would be of no ascertainable benefit to . . . plaintiffs.
ASR, slip op. at 3-5.  Putting aside ediscovery, important as that is in and of itself, this is one of the best statements extolling federal/state cooperation that we've seen.

Bravo for the court for striking a blow for common sense – and for federal-state coordination.  And congratulations to Susan Sharko, over at Drinker Biddle, for advancing the cause of sanity in ediscovery.

1 comment:

Charles Houssiere said...

I don't really see the point requesting new MDL protocols, besides putting more financial burden to the defendants in redoing their discovery documents. Surely reading through 10.000.000 pages is an enormous, if not impossible task, but since the defendant is J&J it was something to be expected. A Bloomberg report mentions the dissatisfaction of one of the plaintiffs attorney, quoting that by stacking those papers “you would have seven towers equal in height to the Empire State Building” ,and I can totally understand him.
It's clear that this case won't be an easy win for the plaintiff's attorneys, but at least the MDL is moving forward.