The Government’s Duty to Preserve Evidence in a Non-Intervened “Qui Tam” Case

Stephen_Wood_03032014Featured Expert Contributor, False Claims Act

Stephen A. Wood, Chuhak & Tecson, P.C.

For a printer-friendly PDF of this post, click here.

Every civil litigator and trial lawyer knows (or should know) that a party to litigation has a duty to preserve evidence and documents for use in discovery and trial.  The rule applies to all litigants, whether public or private entities or persons.  It may even be applied to non-parties in certain circumstances, although typically non-parties face more limited obligations.

The False Claims Act qui tam provisions present a unique set of challenges bearing on the government’s duty to preserve.  Qui tam complaints are filed under seal to facilitate the government’s investigation after which it may elect to take the case over.  When it declines to intervene in the qui tam case, the government typically considers itself to be a non-party, eschewing any duty to preserve evidence.  Yet, for many reasons, the government should be treated as a party for purposes of the duty to preserve evidence in those cases in which it has declined to intervene.  And in the face of a breach of that duty, both the government and the qui tam relator should face the prospect of sanctions as the circumstances warrant. Continue reading “The Government’s Duty to Preserve Evidence in a Non-Intervened “Qui Tam” Case”

Finally Fed Up with Private Plaintiffs Litigating over Empty Space, California Amends Slack Fill Law

Guest Commentary

By Robert S. Niemann, a Partner with Keller and Heckman LLP in the firm’s San Francisco, CA office, and Jill M. Mahoney, an Associate in the firm’s Washington, DC office.

Editor’s note: This blog is an update to the February 2, 2018 WLF Legal Backgrounder, “Litigating over Empty Space: Public and Private Plaintiffs Target Consumer Class Actions at “Slack Fill.”

Defendants of would-be “slack fill”1 lawsuits may have found some reprieve from litigation in California. On September 19, 2018, California Governor Jerry Brown signed into law Assembly Bill 2632, which amends the state’s slack fill law2 to provide manufacturers facing nonfunctional slack fill allegations with additional safe harbors. While specious slack fill lawsuits have been on the rise in recent years, the amendment is a step forward for the food manufacturing industry and demonstrates that California, the home to many slack fill suits,3 may also be growing tired of such claims. Continue reading “Finally Fed Up with Private Plaintiffs Litigating over Empty Space, California Amends Slack Fill Law”

New Jersey Supreme Court Adopts Daubert (More or Less) for Civil Cases

Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Surya Kundu, an Associate with the firm.

For a printer-friendly PDF of this post, click here.

Although regarded by many as a relatively plaintiff-friendly court, the New Jersey Supreme Court recently bucked the stereotype by largely adopting Daubert for civil cases.  The court’s decision in In re: Accutane Litigation is a behemoth, weighing in at 85 pages (not including the syllabus), but the background and outcome are pretty straightforward. Continue reading “New Jersey Supreme Court Adopts Daubert (More or Less) for Civil Cases”

Federal District Court Excludes Dubious “Scientific” Opinions in Mirena MDL

Featured Expert Contributor, Judicial Gatekeeping of Expert Evidence

 

Evan M. Tager, a Partner in the Washington, DC office of Mayer Brown LLP, with Jonathan S. Klein, an Associate with the firm.

For a printer-friendly PDF version of this post, click here.

Although courts don’t always apply Daubert with the rigor that is warranted, when they do, it is worth noting.  Such is the case with federal district court Judge Paul Engelmayer’s thorough and scholarly decision excluding the opinions of all the plaintiffs’ general-causation experts in an MDL involving Bayer’s Mirena IUD device, In re Mirena Ius Levonorgestrel-related Products. Liability Litigation (No. II).   Continue reading “Federal District Court Excludes Dubious “Scientific” Opinions in Mirena MDL”

Divided Virginia Supreme Court Decision Epitomizes National Split over “Take Home” Asbestos Liability

Featured Expert Contributor, Mass Torts—Asbestos

RobertWrightRobert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

Plaintiffs have pushed for a rule that would hold employers liable for so-called “take home” asbestos exposures, arguing that companies that used asbestos in the workplace owe a duty not only to protect their own employees from direct exposures, but also to protect anyone who later comes into contact with those employees.

This theory of liability has been rejected in almost two-thirds of the jurisdictions to consider the issue.  Fifteen states—including Arizona earlier this year—have decided defendants owe no duty of care to those claiming take-home exposure (Arizona, Georgia, Illinois, Iowa, Kansas, Kentucky, Maine, Maryland, Michigan, New York, North Dakota, Ohio, Oklahoma, Pennsylvania, Texas).  In contrast, until recently, only eight states recognized some form of such a duty (Alabama, California, Delaware, Indiana, Louisiana, New Jersey, Tennessee, Washington).

Earlier this month, the Supreme Court of Virginia was confronted with the question of take-home liability in Quisenberry v. Huntington Ingalls Inc., No. 171494, 2018 WL 4925349 (Va. Oct. 11, 2018).  Continue reading “Divided Virginia Supreme Court Decision Epitomizes National Split over “Take Home” Asbestos Liability”

Litigation Funding Slides Downmarket

Featured Expert Contributor, Litigation Strategies

Joe_Hollingsworth_thumbnail 1McMinn_Donald_MainJoe G. Hollingsworth, Partner, Hollingsworth LLP, with Donald R. McMinn, a Partner with the firm.

 

Click here for a PDF version of this post.

Through their investments in a lawyer’s case(s), litigation funders have fomented economically shaky litigation while making that litigation’s resolution more difficult by disguising the settlement decision maker.  Now litigation funders are entering a new market—one composed of the plaintiffs themselves, rather than their attorneys.  Their new approach is, quite possibly, worse than their initial one.

Web-based platforms speak of creating an ostensible “peer-to-peer” approach by which even individuals can invest in the lawsuits of others.  The platforms allow would-be funders to pick and choose lawsuits in which to invest and then direct the investment straight to plaintiffs, not their lawyers.  Plaintiffs trade their receipt of funds now in return for agreeing to repay the lender out of any recovery. Continue reading “Litigation Funding Slides Downmarket”

New NY Commercial Division E-Discovery Rule Encourages Use of Technology-Assisted Review

 

Guest Commentary

By Elizabeth M. Sacksteder and Ross M. Gotler, Paul, Weiss, Rifkind, Wharton & Garrison LLP. Ms. Sacksteder is a Partner with the firm and a member of the Commercial Division Advisory Council. Mr. Gotler is E-Discovery Counsel with the firm. Some of this material first appeared in Law 360.

The most expensive stage of big-ticket litigation today is review of the huge volume of electronically-stored information (ESI) that such cases typically require, notwithstanding such common economies as the use of vendors to do first-level document review. Achieving greater efficiency in this resource-intensive stage of litigation—making review of ESI cheaper, faster, and more accurate—is a shared goal of litigants, their counsel, and the courts. Sophisticated litigants know that the use of technology-assisted review can yield substantial cost savings as well as streamline and accelerate document review and production.

Though the e-discovery industry is embracing technology, neither the Federal Rules of Civil Procedure nor state procedure codes address whether, in what circumstances, or how a party may use technology-assisted review to fulfill its disclosure obligations. Other than references in a few discovery pilot programs, a relatively sparse body of mostly federal case law, and secondary sources such as the commentaries of The Sedona Conference, there has been little express guidance to date for practitioners or courts concerning the appropriate use of technology-assisted review. Continue reading “New NY Commercial Division E-Discovery Rule Encourages Use of Technology-Assisted Review”