Monday, October 25, 2010

Confidentiality: We're Telling You for the Last Time

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 overdesignation 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 pummelled 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.

We gave that contention a good deal of thought and whipped off a retort that cited all the leading authoriities -- the Third Circuit, Judge Weinstein, Jersey Shore, and Argentinian folk sayings. Unanswerable, right?

And then Justinian Lane at the Dangerous Drugs blog lobbed in his "Two Cents." He criticized our facts. He criticized our law. He criticized our policy arguments. He didn't say anything about our taste in clothes, but if he had we're betting it would've been critical. (And he'd be right.) By the way, what gives with the argumentative blog titles like "Drug Recall" or "Dangerous Drugs"? Should we retitle ours "Medicines and Devices that Help People" or "Nice, Job-Creating Products"? Anyway, we thought we had already said our piece so that substantively, if not chronologically, we had the Last Word. And then last week the Drug Recall blog blasted us again. Listen: when we said "Come at Me, Bro" we didn't really mean for you guys to come at us! Why, that's as silly as asking Al Quaeda to "bring 'em on."

Because Ron Miller and Justinian Lane are smart plaintiff lawyers, their blog posts are clever, insightful, and well-crafted. Because Ron Miller and Justinian Lane are plaintiff lawyers, their bottom line is bereft of merit. So here we go again. To quote Jerry Seinfeld, we're telling you for the last time. Just among us, it's hard to say more on confidentiality without repeating ourselves. It's like the Die Hard franchise. (True story: At a Hollywood pitch meeting a couple of years ago, someone proposed a new Die Hard film. It would be "Die Hard in a building." Um, does anyone remember what the first Die Hard was about?) So let's just get in and get out, hitting the key points. And unlike Ryan Howard, if we're going to strike out, at least we're going down swinging.

Here are the main issues raised by the Bad Guys -- okay, Mistaken Guys -- along with our helpful explanations of why they are Mistaken.

Doesn't the hourly billing system give defense lawyers an incentive to create useless work? No. Unlike mass tort plaintiff lawyers, defense lawyers have clients who control litigation strategies and tactics, all the while eyeing the bottom line. As we've said before, the old scorched earth mentality is the exception, not the norm. In-house lawyers don't like it, their bosses don't like it, and their insurers don't like it. Guess what? Courts don't like it either. For that matter, outside lawyers don't like it. Generating make-work isn't satisfying, even assuming one could get away with it. Better to spend more time on other matters. Oh, and have you heard of fixed-fee arrangements or caps? This might be one of those topics where plaintiff lawyers are going to continue to believe whatever they believe, unhindered by reality and warped by years of suspicion. No doubt there are misperceptions like this going the other way. Maybe we're wrong to think that mass tort plaintiff lawyers drink martinis flavored with panda tears and that they're pulling off a massive wealth redistribution scam that kills off American jobs. Maybe.

Defense lawyers are resentful, greedy chuckle-heads. Both the Dangerous Drugs and Drug Recall blogs veer off into digressions on the difference between plaintiff and defense lawyers. One says that defense lawyers are probably smarter, but are infuriated by the success of plaintiff lawyers who make up with daring what they lack in Shephardizing skills. "How can people who never read Proust outsmart me on preemption?" Or something like that. The other says that defense lawyers have been brainwashed by "golden handcuffs" to be conservative on tort issues even if they are correct and liberal about everything else. We don't buy it. And what's the point? Its like Marxists or Freudians who argue that their opponents aren't just wrong but are plagued by false consciousness. And now Marx and Freud occupy the dust-bin of history. So there. Look, we know plenty of plaintiff lawyers who are brilliant brief writers. We don't think we're brain-washed. We get along pretty well with our opponents. The stereotypes are hooey -- except that plaintiff lawyers sometimes can be a little too quick to conjure up a phony morality play.

Expense-exschmense. Isn't e-discovery cheap? Are you kidding? The Dangerous Drugs blog talks about how cheap it is to copy a dvd. Sure. But that leaves out everything that takes place before that. It costs an enormous amount of money to look for documents, collect them, and review them for responsiveness, privileges, trade secrets, and confidentiality. It costs a lot of money to produce those materials. If the plaintiff lawyers insist on reviewing backup tapes (they usually do) that's another mountain of expense. Hosting fees are higher than high. Almost none of this involves moneys paid to your friendly neighborhood defense lawyer. It goes to vendors and contract lawyers. And it's not as if any of these expenses are avoidable. Discovery of electronically stored information (ESI) is grotesquely expensive. Plaintiff lawyers typically insist that they are entitled to every document, email, database item, etc that mentions Drug X. But let's assume the plaintiff lawyers content themselves with an ESI search for only 25 company employees. So let's leave out thornier issues of databases, shared drives, legacy media, and EU privacy issues. Let's further assume that each employee has 10 gb of active data. (There would be much more if there is an email archive in play.) Vendors typically charge $500 per gb to process ESI. Hosting fees average around $25 per gb per month. And we're not talking at all about the massive costs of boots on the ground to collect, review, and process this stuff. A corporate defendant will spend millions of dollars on discovery, without having been found liable for anything. Check out Ralph Losey's e-Discovery Team blog on the costs of e-discovery. These costs are going up, not down. Nobody disputes this, except maybe plaintiff lawyers whose clients have no data and don't have to worry about such costs. And the fact is that a vanishingly small percentage of this discovery ever gets used, or even looked at, by plaintiffs. It's a pressure point, pure and simple.

Doesn't the public have a right to, and wouldn't it benefit from, publicizing all discovery materials? No and no. The U.S. Supreme Court in Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) made it clear that the press and public have no constitutional right of access to materials exchanged as part of the discovery process. Confidentiality orders "are not a restriction on a traditionally public source of information." Id. at 32. Of course it is true that under the usual day-to-day operation of the Federal Rules of Civil Procedure, the parties are free to disseminate discovery materials. That's because it usually doesn't matter. There's no confidential material and nobody cares. But Rule 26(c) provides that if there is "good cause" then the court will enter an order protecting a party from "annoyance, embarrassment, oppression, or undue burden or expense." Rule 26(c) contains a nonexhaustive list of eight orders a court might fashion. Number 7 provides that a court may order "a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way." In the sorts of cases we're talking about, the millions of documents produced in discovery will invariably contain material for which there is good cause to limit dissemination. For example, scientifc research and development and marketing documents contain trade secrets. And it's not only trade secrets that warrant protection. Consequently, courts often issue "umbrella" protective orders. Remember, in the case that got this whole debate started, the plaintiffs were seeking to undo the entire protective order. Neither the Drug Recall nor Dangerous Drugs blog try to support that. Instead, they say that the public benefits from release of certain types of information. Interestingly, Dangerous Drugs uses exactly the same example we did. Assume all the data has been provided to the FDA. Assume that various scientists at the company set about interpreting the data. One scientist initially interprets the data to disclose a risk. But a whole slew of other scientists analyze the data more carefully and show that the data is not, in fact, suggestive of such a risk. They even manage to persuade the errant scientist. Should that one scientist's interpretation be publicized? It certainly would make for a punchy item in the plaintiff lawyer's press conference. But it's not reflective of reality. It is, in a word, misleading. But the company probably cannot or will not issue a corrective press release (e.g., "here are the other 20 documents that show the proper context") because anything like that would be, in itself, lawsuit-bait. Plaintiff-securities lawyers can push a button and spit out a complaint as soon as the stock price burps. But of course the company faces no such issue during the trial, where the whole truth can be brought out fairly and with all appropriate context. Why not allow the actual right of press and public access to play out at trial on a balanced record? Is it because what's afoot here isn't informing the public but, rather, prejudicing the jury pool and exerting leverage?

We'd like to put this Point-Counterpoint gig to rest. Maybe we can end with a really cool quote. Hamlet's last words come to mind: "The rest is silence." Or the Talking Heads: "Say something once, why say it again?" Whatever. Who decides who gets the Last Word?

Remember what got this whole thing started? That plaintiff motion in Aredia-Zometa seeking to undo the protective order? The court recently issued its decision, saw the plaintiffs' motion for the overbroad, disingenuous mess it was, and ruled against the plaintiffs. For now, we're calling that the Last Word.

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