18th Annual Workplace Class Action Report - 2022 Edition

578 Annual Workplace Class Action Litigation Report: 2022 Edition did not come with accurate health warnings, and that as a result of the earplugs’ allegedly defective nature, Plaintiffs suffered tinnitus and hearing loss. During discovery, Defendants filed a motion to compel production of documents from the U.S. Department of Defense (“Department”). Specifically, Defendant argued that the Department unreasonably delayed in responding to their discovery requests for: (i) noise and ototoxin exposure data; (ii) sales and distribution data for the CAEv2; (iii) documents related to annual Military Audiology Association "Short Course" meetings from 1999 to 2005; and (iv) testing data for hearing protection devices other than the CAEv2. Id . at *4. The Magistrate Judge recommended that the motion be denied. The Department argued that Defendants’ motion should be denied because it sought to compel responses to discovery requests Defendants did not previously send to the Department or to which the Department already responded. As to the first request for noise and ototoxin exposure data, Defendants initially sought "data or other documents regarding the amount of noise service members are exposed to in particular specialties, in particular situations, or when operating particular weapons." Id. at *8. The Department offered a sworn declaration from Major Kim in which she distinguished the noise and ototoxin data collected by the military and that requested by Defendants, averring that the further requested data did not exist for production. The Magistrate Judge thus recommended that the request be denied. As to the second request for sales and distribution data for the CAEv2, the Magistrate Judge found that the Department already had responded to the request. As to the request for meeting materials from 1999 to 2005, the Department argued that any response to the request was subsumed in the Department’s responses to similar discovery requests by Defendants for various training materials, instructions, and communications. Id . at *22. The Magistrate Judge noted that the Department believed that any response to this request was subsumed into its responses to Defendants’ other discovery requests, and it had subsequently conducted a search for these materials and not located any responsive documents. For these reasons, the Magistrate Judge recommended that the motion to compel be denied in its entirety. In Re 3M Combat Arms Earplug Products Liability Litigation, 2021 U.S. Dist. LEXIS 10427 (N.D. Fla. March 12, 2021). Plaintiffs, a group of U.S. Army service members and veterans, filed a number of separate class actions, which were eventually consolidated into multi-district litigation, claiming that Defendant supplied Army service members with defective earplugs. Plaintiffs filed suit under the False Claims Act alleging that Defendant’s earplugs did not come with accurate health warnings, and that as a result of the earplugs’ allegedly defective nature, Plaintiffs suffered tinnitus and hearing loss. During discovery, Defendants filed a motion to compel compliance with a discovery subpoena served on non-party Top Class Actions, LLC ("TCA") pursuant to Rule 45. TCA runs a website (http://www.topclassactions.com) "that provides information, among other things, about class actions, class action settlements, and class action investigations." Id . at *5. TCA was engaged by attorneys to publish articles about the claims in the MDL. Defendant sought production of all communications relating to claimants or claims in the MDL from TCA. Plaintiffs intervened in the discovery dispute, asserting attorney-client privilege and work product protection over the communications. The Court granted Defendants’ motion to compel. The Court determined that the information provided by a prospective Plaintiff to a lawyer through TCA’s website was not subject to the attorney-client privilege because it was not made in confidence or expected to be treated as confidential . Id . at *17. The Court determined that TCA’s website expressly disclaimed any such intentions when it warned viewers that it could not "guarantee that the information” that viewers submitted would “not end up in" the MDL Defendants’ hands. Id . at *18. Therefore, the Court ruled that TCA could not resist compliance with Defendants’ Rule 45 subpoena based on the attorney-client privilege. In addition, the Court held that Plaintiffs’ claim of work product protection also failed. First, the Court was not persuaded that the information being withheld qualified as work product. Id . at *20. The Court noted that the communications in issue were created for business purposes (marketing and advertising) of the attorneys utilizing TCA’s services, rather than in anticipation of impending litigation for a particular Plaintiff. Id . Further, the Court reasoned that TCA’s role was to advertise for paying attorneys, not to assist them in litigation against the Defendants. Id. The Court concluded that TCA did not have any legal interest in the Plaintiffs’ litigation, and Defendants were not an adversary to TCA. Id . at *20-21. For these reasons, the Court granted Defendants’ motion to compel the communications from TCA. In Re 3M Combat Arms Earplug Products Liability Litigation, Case No. 19-MD-2885 (N.D. Fla. April 14, 2021). Plaintiffs, a group of U.S. Army service members and veterans, filed a number of separate class actions, which were eventually consolidated into multi-district litigation (“MDL”) in which Plaintiffs alleged that Defendant