Court Prohibits Defendant from Making Potentially “Coercive” Settlement Offers to Putative Classmembers.

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“A defendant has a right to communicate settlement offers directly to putative class members. However, a defendant may not abuse that right. Cases in which courts have conditioned the transmission of settlement offers involve class members in an inherently coercive dependent relationship with the defendant and/or settlement offers for less than that sought in the lawsuit. Here, the relationship between …

Qualcomm Attorneys Sanctioned $8.5 Million for Discovery Abuses and False Representations to the Court.

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“One or more of the retained lawyers chose not to look in the correct locations for the correct documents, to accept the unsubstantiated assurances of an important client that its search was sufficient, to ignore the warning signs that the document search and production were inadequate, not to press Qualcomm employees for the truth, and/or to encourage employees to provide …

Counsel Has Responsibility to Retain Competent Experts or Consultants Where Necessary to Respond to Legitimate E-Discovery Requests.

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In a case involving a DVD full of e-mails requested by defendant, the plaintiff’s counsel ran into some software issues in trying to access, print, review, and produce the files in question. After producing only ten e-mail strings, and a relatively limited privilege log, the defendant filed a motion to compel. A U.S. Magistrate Judge sitting in the District of …

Third Circuit Rejects Requirement of “Proportionality” in Court-Awarded Fees.

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The U.S. Third Circuit Court of Appeal found that: “Rejecting a proportionality rule with regard to Section 1132(g)(2)(D) is consistent with the purpose of the provision. ERISA provides for ‘appropriate remedies, sanctions, and ready access to the Federal courts’ in order to ‘protect interests of participants in employee benefit plans and their beneficiaries.’ When delinquencies are small, the cost of …

Louisiana Supreme Court Reverses Nullity of Judgment Based on Fraud or Ill-Practices Associated with Spoliation of Evidence Claims.

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Plaintiffs sought to nullify a defense verdict in a products liability / highway defect case wherein the automobile involved in the collision had been purchased by defense counsel during the pendency of the litigation. Defense counsel, in the underlying suit, moved to dismiss the claims, and then to limit the testimony of plaintiffs’ experts, based upon the fact that plaintiffs …

U.S. District Judge Holds that Work Product of Audit Committee is Not Waived by Disclosure to SEC.

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A U.S. District Judge sitting in the Southern District of New York upheld claims of Work Product over documents shared by the Audit Committee with the SEC. Because the Audit Committee “determined that it and the SEC shared a ‘common interest in developing legal theories and analyzing information’ concerning potential financial irregularities at Cardinal and authorized sharing of documents with …

ABA Ethics Committee Confirms that Counsel Can Contact Putative Classmembers Prior to Certification.

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The ABA Standing Committee on Ethics and Professionalism determined that, prior to class certification, defense counsel may contact putative class members without seeking permission from attorneys for the named plaintiffs; however, defense counsel must comply with Model Rule 4.3, which regulates attorney contact with unrepresented persons. The Committee also determined that plaintiff’s counsel has the same rights and obligations. See …

Second Circuit Rules that Percentage Fees Should be Awarded on the Entire Fund Made Available to Claimants.

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In an anti-trust case, a cy pres distribution was made on unclaimed funds. The Second Circuit reversed the District Court’s fee award, which was limited to a percentage of the funds actually distributed to the class. “In this case, the District Court calculated the percentage of the Fund on the basis of the claims made against the Fund, rather than …

District Judge in New Jersey Imposes Multiple Sanctions Against Defendant for E-Discovery Spoliation and Abuse.

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In case where defendant was found to have submitted false and misleading evidence to the court regarding its efforts to make restitution, Health Net was also sanctioned for engaging in widespread discovery abuse, including the failure to search thousands of employees’ e-mails for responsive documents as well as the permanent loss of many others due to the defendant’s retention/deletion policies. …

Third Circuit Finds That Communications Regarding the Obligation to Preserve E-Mail and Other Files May Not Be Protected Under Crime-Fraud Exception.

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In response to a subpoena served in the course of an ongoing grand jury investigation, the recipient of the subpoena conferred with counsel regarding her preservation obligations. The district court compelled production of the notes taken by the attorney, under the crime-fraud exception, and the U.S. Third Circuit affirmed. “At the time of Jane Doe’s January 20, 2005 conversation with …