Discovery Sharing By Plaintiff’s Lawyers (Or, The Dog Ate Goodyear’s Homework)
[Update, August 26, 2013: After some further bickering and litigation in the Haeger case, the Court granted the plaintiff's motion for attorney's fees, then ordered "judgment in favor Plaintiffs and against Graeme Hancock in the amount of $548,240.23 and against Basil J. Musnuff and the Goodyear Tire and Rubber Co. in the amount of $2,192,960.93."]
Over at Safety Research, Sean Kane details a recent order from the federal court in Arizona entering sanctions against Goodyear and its lawyers for concealing testing data in a tire failure case. As every product liability lawyer knows well, the concealment of evidence by tire manufacturers and car companies is pretty much routine these days. It doesn’t matter how specific your request is, how many times you ask, or if you have several court hearings or court orders on your side: the car and tire companies will tell you that they have no safety testing or crash investigations that relate in any way to the products involved in your case. That is, of course, until you retain an expert to point out that the company apparently didn’t do any safety testing of its own products — at which point you will have thousands of studies and investigations dumped on your lap, but none involving the product at issue in your case. It’s a funny coincidence that way.
I’ve written before about the national scandal of tire failures, in which old and otherwise defective tires kill people every day. Tires are more than just rubber — numerous compounds are woven and glued together — but, when all is said and done, the tire is only as strong as its weakest link, and that weakest link is often a rubber compound or an adhesive. In hotter temperatures, and at higher speeds, the temperature of the tire goes up, making failure more likely. Simple chemistry.
Simple, but still too much for Goodyear. The deadly Goodyear G159 tire is well-known among trial lawyers. The tire was first designed for use on regional delivery trucks, which typically don’t travel at high speeds and which often stop. As baby-boomers began to age into their fifties in the 1990s, the Recreational Vehicle market grew rapidly, and Goodyear wanted to capitalize on it, so they re-branded the G159 as an RV tire, and it was adopted as the standard tire on several Fleetwood and Monaco RVs.
Problem was, the G159 wasn’t meant to withstand the weight of an RV at high interstate speeds (and sometimes in high temperatures in the South and the Southwest) for long durations. The tires began to fail at an alarming rate, prompting a wave of litigation, but no recall — and plenty of G159 tires are still out there, some as spares, getting older and even less reliable as the rubber and glue compounds dry out over time.
The Haeger case is thus almost routine by product liability standards: back in 2003, a husband and wife were seriously injured when the Goodyear G159 tires on their motor home failed while they were driving on the interstate. In the Haeger lawsuit, Goodyear was asked to produce a variety of high temperature and high speed testing, but didn’t, and repeatedly told the Court and the plaintiff’s lawyers otherwise. The case settled on the eve of trial; nearly a year later, the plaintiff’s lawyer was reading about another G159 case that went to trial and resulted in a $5.6 million verdict. The newspaper article mentioned the plaintiffs there had used at trial “Goodyear documents including internal heat and speed testing and 13 failure rate data” — the same studies Goodyear and its lawyers said didn’t exist in the Haeger lawsuit.
The plaintiff’s lawyer was, shall we say, upset, and wrote to Goodyear’s lawyer, who promptly admitted they hadn’t produced the studies, and claimed everyone — Court included — knew it! Unsurprisingly, the plaintiff’s lawyer disagreed, and so filed for sanctions. Sean Kane’s post includes the sanction order itself, and I must admit it’s comforting to see, in a court order, confirmation of what product liability plaintiff’s lawyers like me say all the time: corporations routinely conceal evidence. As the Court dug up while considering the sanctions motion, Goodyear’s lawyers didn’t disclose evidence as required by court rules and court orders; instead, their internal emails showed they only produced what, they said, “serves our best interest to produce.”
But I don’t want to dwell on those details. Rather, I want to dwell on this part of the Court’s recitation of the underlying facts, in which the Court denied a request by the plaintiff’s lawyer to “share” information among other plaintiff’s lawyers:
In August 2006, the parties filed their first notice of a discovery dispute. That disagreement centered on the terms of a protective order. The parties could not agree on how material designated “confidential” should be handled and on whether the protective order should include a provision allowing Mr. Kurtz to ”share” information with other counsel litigating G159 claims against Goodyear elsewhere in the country. … Plaintiffs argued it was necessary to ensure that all parties litigating cases against Goodyear would receive “the appropriate and complete data similarly situated cases.” The Court rejected this request, emphasizing that “every officer before this Court has an obligation to provide all relevant discovery.” The Court observed that the Federal Rules already provide “that anything that is relevant must be turned over to counsel and to all the parties,” so there was no need for the sharing provision.
Information “sharing” among plaintiff’s lawyers representing different clients with similar claims is perhaps the single most contentious issue of product liability claims against large companies. As the Court in Haeger noted, in theory, there should be no need for plaintiff’s lawyers to share information, because the defendants and their lawyers are obligated by law to provide all discoverable information. In practice, however, large companies routinely break the law and knowingly conceal relevant information from plaintiff’s lawyers — which is why they fight so hard to prevent information sharing. Indeed, if the defendants were not planning on concealing information, why would they care if a bunch of plaintiff’s lawyers, all of whom were bound by confidentiality orders, shared information?
Hopefully, the Court in Haeger learned its lesson from the ensuing fiasco: prohibiting sharing among plaintiff’s lawyers serves no legitimate purposes, it just encourages and enables discovery fraud by defendants. There’s a reason virtually every court, and virtually every learned legal commentator, that has given the issue much thought has rejected the idea of anti-sharing provisions in confidentiality agreements. Says the Manual for Complex Litigation:
Judges should encourage techniques that coordinate discovery and avoid duplication… Filing or crossfiling deposition notices, interrogatories, and requests for production in related cases will make the product of discovery usable in all cases and avoid duplicative activity. Relevant discovery already completed should ordinarily be made available to litigants in the other cases.
Manual for Complex Litigation, Fourth Edition, § 20.14.
Says Professor Arthur Miller:
It is difficult and indeed unwise to have an absolute prohibition on discovery sharing, given the extraordinary high cost of litigation and the reality that discovery accounts for the largest component of that expenses in many cases. Barring sharing smacks too much of requiring each litigant to reinvent the wheel and not surprisingly it has been rejected on that basis by some courts. As Judge Wisdom has put it, there “is no reason to erect gratuitous roadblocks in the path of a litigant who finds a trail blazed by another.”
Miller, Arthur, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv. L. Rev. 427, 497 (1991).
Says the Ninth Circuit:
This court strongly favors access to discovery materials to meet the needs of parties engaged in collateral litigation. Beckman, 966 F.2d at 475. Allowing the fruits of one litigation to facilitate preparation in other cases advances the interests of judicial economy by avoiding the wasteful duplication of discovery. Id.; United Nuclear, 905 F.2d at 1428 (quoting and adopting the standard laid down by the Seventh Circuit in Wilk, 635 F.2d at 1299, ‘that where an appropriate modification of a protective order can place private litigants in a position they would otherwise reach only after repetition of another’s discovery, such modification can be denied only where it would tangibly prejudice substantial rights of the party opposing modification.’); 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2044.1 (2d ed. 1994). Where reasonable restrictions on collateral disclosure will continue to protect an affected party’s legitimate interests in privacy, a collateral litigant’s request to the issuing court to modify an otherwise proper protective order so that collateral litigants are not precluded from obtaining relevant material should generally be granted.
Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1131–1132 (9th Cir. 2003).
As the Southern District of New York recently summarized:
[I]t is well established that the Federal Rules of Civil Procedures create no automatic prohibition against using discovery obtained in one litigation in another litigation. Dove v. Atl. Capital Corp., supra, 963 F.2d at 19-20 (district court did not abuse its discretion by declining to enter a protective order prohibiting parties from using discovery in that litigation in another action in the United Kingdom); American Tel. & Tel. Co. v. Grady, 594 F.2d 594, 597 (7th Cir. 1979) (‘several district courts have refused to enter protective orders which prevent disclosure to others litigating similar issues on the grounds that the Federal Rules of Civil Procedure do not foreclose collaboration in discovery’); Patterson v. Ford Motor Co., 85 F.R.D. 152, 154 (D.C. Tex. 1980) (‘There is nothing inherently culpable about sharing information obtained through discovery.’). In fact, such use across proceedings promotes efficiency and avoids waste. …
[A] number of courts have rejected requests to limit the use of discovery to the litigation in which it is initially obtained. Cipollone v. Liggett Group, Inc., supra, 113 F.R.D. at 91. See also United States v. Hooker Chems. & Plastics Corp., 90 F.R.D. 421, 426 (W.D.N.Y. 1981) (‘Use of the discovery fruits disclosed in one lawsuit in connection with other litigation, and even in collaboration among plaintiffs’ attorneys, comes squarely within the purposes of the Federal Rules of Civil Procedure. . . . Such cooperation among litigants promotes the speedy and inexpensive determination of every action.’); Patterson v. Ford Motor Co., supra, 85 F.R.D. at 154 (‘The availability of the discovery information [to counsel in related proceedings] may reduce time and money which must be expended in similar proceedings, and may allow for effective, speedy, and efficient representation.’); Williams v. Johnson & Johnson, 50 F.R.D. 31, 32 (S.D.N.Y. 1970) (Because the collaborative use of discovery material across related litigation ‘comes squarely within the aims laid out in the first and fundamental rule of the Federal Rules of Civil Procedure . . . there is no merit to the all-encompassing contention that the fruits of discovery in one case are to be used in that case only.’).
Duling v. Gristede’s Operating Corp., 266 F.R.D. 66, 75–76 (S.D.N.Y. 2010).
There are many lessons to be gleaned from the Haeger sanctions order. Defense lawyers need to stop telling themselves that their client’s “best interest” is somehow the governing rule, rather than the actual Rules. Plaintiffs lawyers need to remember to dig, dig, and dig — and, as Rich Newsome says, “be wired” with other plaintiffs’ lawyers litigating similar cases.
But most of all, judges need to stop inadvertently enabling discovery fraud, and instead let plaintiff’s lawyers share information found in discovery, as permitted by the rules. It’s not just a matter of avoiding waste of judicial resources with duplicated proceedings, or even of ensuring fairness for plaintiffs; it’s a matter of open courts and public accountability for court cases.