For The Defense, October 2010 - DRI Today

Identification, from page 26are usually fact- and jurisdiction-specific.Often, the time for filing crossclaims hasalready expired, or under the law of thejurisdiction agreeing to stipulate to a dismissaldoes not waive a nonparty defense.If your client has filed neither answer norsummary judgment, remind the plaintiff’scounsel of the availability of volun-tary dismissal under Fed. R. Civ. P. 41(a)(1)(A)(i), in which the stipulation of the otherappearing parties is unnecessary nor couldbe held against them.ConclusionThe “sue first and investigate later” mentalityabuses the judicial process and drainsour client’s resources. As compliance withFed. R. Civ. P. 11 erodes, perhaps the strategiesidentified above will assist you toachieve dismissal, or even sanctions, opinionsthat will deter plaintiffs from filingsuits absent good-faith bases. At the veryleast, these tools should ensure that onlythose claims proceed against our clients inwhich products have been definitively identified.Think Globally, from page 80courts, then international manufacturerswould suffer economic disadvantages.That is, a global corporation would, persuadedby the threat of litigation, probablythink that it needed to manufacture itsgoods in compliance with the internationalcommunity’s highest safety standard, or atleast persuaded by the threat of litigation,whereas a corporation that manufacturedsolely for the domestic market would onlyneed to abide by U.S. law. It would becomemuch easier to show that an internationalmanufacturer had notice of an alternativedesign when it designed its foreign product.Therefore, a corporation manufacturingfor the international market would losethe ability to compete in its domestic marketdue to the increased cost burden, whichdirectly bears on the risk- utility test thatmost jurisdictions apply.As long as sovereign nations retain theright to determine product quality andsafety standards, as they well should, corporationsmanufacturing in the internationalmarket will have continue to complywith a variety of standards. Given this fact,“it is manifestly unfair… as well as an inappropriateusurpation of a foreign court’sproper authority to decide a matter of localinterest, for a court in this country to seta higher standard of care than is requiredby the government of the country in whichthe product is sold and used.” Harrisonv. Wyeth Lab. Div. of Am. Home ProductsCorp., 510 F. Supp. 1, 9–10 (E.D. Pa. 1980).That same principle applies to admittingevidence of alternative, foreign designs inU.S. courts.E-Discovery, from page 37parties from the most dire consequencesof inadvertent waiver by allowing them to‘take back’ inadvertently produced privilegedmaterials if discovered within a reasonableperiod, perhaps thirty days fromproduction.”). This agreement usually providesspecific procedures by which the disclosingparty can demand the return of thedisclosed materials.Although Federal Rule of Evidence502(b) provides for the protection of inadvertentdisclosure of privileged informationor work product, parties should seekthe additional protection of a nonwaiveragreement. To prevent an opponent fromusing mistakenly disclosed documentsunder Fed. R. Evid. 502(b), a disclosingparty must satisfy three requirements:(1) the disclosure must have been inadvertent,(2) the party must have taken reasonablesteps to prevent the disclosure, and(3) the party must have taken reasonablesteps to rectify the error. Fed. R. Evid.502(b); see Amobi v. D.C. Dep’t of Corr., 262F.R.D. 45, 52 (D.D.C. 2009) (holding workproduct protection waived for an attorneymemorandum because the disclosingparty did not demonstrate reasonableefforts to prevent disclosure); United States84 n For The Defense n October 2010v. Sensient Colors, Inc., No. 07-1275 (JHR/JS), 2009 WL 2905474, at *3, 5 (D.N.J. Sept.9, 2009) (finding a waiver of privilege fordisclosed documents disclosed by a plaintiffwho did not take reasonable precautionsto rectify the error). Under Fed. R.Evid. 502(e), however, parties may executea binding agreement on “the effect of disclosureof a communication or informationcovered by the attorney- client privilege orwork product protection.” Parties can takeadvantage of this provision by negotiatinga nonwaiver agreement during the pretrialconferencing and discovery plan developmentstages of suits, which provides plentyof opportunity to seek a court order. SeeFed. R. Civ. P. 16(b)(3)(iv); Fed. R. Civ. P.26(f)(3)(D).When drafting a nonwaiver agreement,attorneys must remember that it is not alicense to indiscriminately produce documents.Courts may not honor nonwaiveragreements that are overly broad or contain“blanket” disclosure provisions. SeeSensient Colors, 2009 WL 2905474, at *3(“[S]uch blanket provisions, essentiallyimmunizing attorneys from negligent handlingof documents, could lead to sloppyattorney review and improper disclosure,which could jeopardize clients’ case.”).With e- discovery, creating a nonwaiveragreement may require the help of experiencede- discovery legal experts.ConclusionJudicial precedence has established newstandards for e- discovery by putting theonus directly on counsel to not only diligently,but absolutely vigilantly undertakee- discovery duties. When faced withthe task of e- discovery in a case with anactively marketed product, it is counsel’sduty to maintain absolute conscientiousnessthroughout the litigation by not onlyreinforcing the litigation hold, but alsokeeping track of all changes, from custodiansto search terms, an from relevantregulations to trade secrets, and avoidingdisclosing all things privileged. Therequired effort is monumental and oftendistracts from defending the merits of acase. However, if e- discovery is not properlyeffectuated, litigants and counselalike may have to endure a court’s arsenalof sanctions. Counsel must safeguardthe e- discovery process, and the best wayto do it is to clearly understand the discoveryplaying field and have e- discoveryexperts readily available to guide a companythroughout litigation.