18th Annual Workplace Class Action Report - 2022 Edition

580 Annual Workplace Class Action Litigation Report: 2022 Edition Upon its review, the District Court ordered Boeing to produce 53 documents because 19 of them lacked attorney-client privilege and 34 of them were subject to the crime-fraud exception. Id . at *3. Thereafter, Boeing petitioned the Fifth Circuit for a writ of mandamus. Boeing argued that the District Court erred in holding that 19 of the documents lacked attorney-client privilege and that the other 34 were subject to the crime-fraud exception. The Fifth Circuit concluded that based on the record, the District Court did not clearly err in finding that the 19 contested documents were not attorney-client privileged because Boeing did not explain what kind of "legal advice" its in-house counsel were providing regarding those documents. Id . at *4. The Fifth Circuit reasoned that with such conclusory statements offered by Boeing regarding these documents, the District Court did not clearly err in finding that the 19 documents were not privileged. As to the 24 crime-fraud excepted documents, the Fifth Circuit found that Boeing had shown a clear and indisputable right to mandamus relief. The Fifth Circuit determined that the District Court’s reasoning in finding a prima facie case was based on only the finding that the document fell within the time period of the alleged fraud. The Fifth Circuit concluded that a temporal nexus between the contested documents and the fraudulent activity alone was insufficient to satisfy the second element for a prima facie showing. Accordingly, the Fifth Circuit granted Boeing’s petition for a writ of mandamus as to this set of documents. The Fifth Circuit therefore denied the petition for a writ of mandamus with respect to the 19 documents claimed to be attorney-client privileged and granted it with respect to the 34 crime-fraud-excepted documents. In Re Juul Labs Inc., Marketing, Sales Practices, And Products Liability Litigation, Case No. 19-MD-2913 (N.D. Cal. April 14, 2021). Plaintiffs in this multi-district class action litigation alleged that Defendant marketed its nicotine delivery products in a manner designed to attract minors, and misrepresented that its products were more potent and addictive than cigarettes. During discovery, the Court issued an order allowing Plaintiffs to take the Rule 30(b)(6) deposition of William F. Gifford, the Chief Executive Officer of Altria. The Court rejected the defense arguments that the deposition was harassing and cumulative. However, the Court limited the deposition to seven hours and ordered that it be scheduled near the end of the discovery period after all depositions were substantially completed. The Court also ordered the parties to meet and confer to determine further deposition dates and timeline for the bellwether Plaintiffs for their depositions. The Court also ordered Defendant to confirm completion of rolling document production and for non-bellwether class representatives to provide responses to Defendant’s requested interrogatory responses. In Re National Prescription Opiate Litigation , 2021 U.S. App. LEXIS 2207 (6th Cir. Jan. 12, 2021). In this multi-district litigation ("MDL"), Plaintiffs were a group of approximately 1,300 public entities who filed class actions against manufacturers, distributors, and retailers of prescription opiate drugs seeking to recover the costs of life-threatening health issues caused by the opioid crisis. Bellwether trials were scheduled for a sample of over 2,000 lawsuits involving 34,458 counties, cities, and other public entities nationwide on claims against the opiate industry asserting alleged violations of the Racketeer Influenced Corrupt Organizations Act and the Controlled Substances Act. The District Court scheduled a trial preservation deposition of Dr. David Kessler. Defendants petitioned for a writ of mandamus to compel the District Court to issue an order preventing Kessler’s deposition. Id . at *2. The District Court denied the writ of mandamus. On appeal, the Sixth Circuit affirmed the District Court’s ruling. Defendants argued that they were likely to succeed in their plea of mandamus because the District Court’s order permitting the use of the preservation deposition at trial in unspecified cases was clearly erroneous; the order violated mandatory rules of the Federal Rules of Civil Procedure governing discovery; the PEC failed to show Dr. Kessler would be actually unavailable; and permitting preservation depositions in MDL cases would have enormous consequence in all MDL cases. Id . at *2-3. The Sixth Circuit determined that the admissibility of the deposition or Kessler’s testimony at trial was not previously addressed by the District Court and therefore any adverse rulings on the admission of Kessler’s testimony could be raised in a future appeal. Further, the Sixth Circuit found that the District Court’s rulings was not erroneous or contrary to law. The Sixth Circuit explained that Rule 30 permits a party to conduct a deposition with leave of a District Court before the time specified in Rule 26 if the deponent will be unavailable after that time. Since the PEC provided that Kessler would be advising or appointed to a position in the incoming Biden administration, he would be unavailable for deposition. The Sixth Circuit also opined that the District Court’s order had strict parameters on the deposition. Defendants contended that they would suffer irreparable harm because they had inadequate time to prepare, and they would be foreclosed from cross-examining him when better prepared at trial. However, the Sixth Circuit reasoned that the harms asserted by Defendants were only speculative,