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In Re: Asbestos Products

August 17, 2011

IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION (NO. VI)


The opinion of the court was delivered by: David R. Strawbridge United States Magistrate Judge

This Memorandum and Order refers only to the cases involving The Cascino Vaughan Law Offices referred to Judge Strawbridge

EXPLANATION AND ORDER

The Court has before it Plaintiff's two-page "Petition for Rule to Show Cause Against Various Defendants and Their Attorneys" (hereinafter "Petition") seeking the entry of an order "requiring defendants' attorneys to show cause for not being held in contempt of court." Plaintiff also asks the Court to "award costs, attorney's fees and any other relief that this Court deems equitable." The Petition was not filed. Rather, plaintiff's counsel submitted it to the Court through our law clerks and Chambers e-mail accounts on July 20, 2011. Counsel apparently felt that it would be inappropriate to have the Petition filed because of a concern about confidentiality. Plaintiffs did not seek leave to file the Petition under seal under pursuant to E.D. Pa. Loc. R. Civ. Pro. 5.1.5.

Counsel for certain defendants*fn1 have filed their response and the Court is now prepared to enter its order, with explanation, as set out within.

1. FACTS

On May 4, 2009, Judge Eduardo C. Robreno referred over 5,000 MDL-875 cases in which plaintiffs were represented by the Cascino Vaughan Law Offices ("CVLO") to Senior Judge Lowell A. Reed, Jr. as Court Annexed Mediator. That mediation effort resulted in the resolution of over 3,000 of those cases prior to Judge Reed's retirement in late April 2011. On August 27, 2009, (and as amended on November 18, 2009), Judge Reed disseminated a policy on confidentiality which provided in part that:

All documents produced, orders of the mediator and statements made at mediation and management conferences with the mediator as well as statements made and other documents issued to facilitate settlement shall be kept confidential and are not to be disclosed to any person or organization except consulting counsel, the parties, support staff personnel for the parties, expert consultants or other witnesses to be produced as part of mediation proceedings. Fed.Rule of Evidence 408 shall apply. Moreover, all parties, counsel, witnesses and support staff personnel for the parties herein are prohibited from entering, or submitting to another to enter, any confidential information described above, into or on the Internet, Worldwide Web or any website, blog, twitter, social network or similar location whether private or available to the public. The same described persons are all prohibited from granting interviews, submitting any press release or similar statement for general circulation or industry publication, as well as, tv and radio personnel or outlets. Rather all said persons will merely tell the inquirer that the matter is in mediation and is confidential at this time.

The policy further provided that: "The foregoing rule is subject to change only upon order of the mediator or other legally authorized judicial officer or court."

On April 18, 2011, anticipating the retirement of Judge Reed, Judge Robreno referred the cases to this Court as Court Annexed Mediator. On June 9, 2011, Judge Robreno modified the referral order and directed that this Court "conduct pretrial procedures, supervision of discovery, settlement conferences, and preparation for trial."

During a June 23, 2011 status conference on these cases, this Court raised the issue of confidentiality with counsel in light of the necessity of the Court to move away from pure mediation to more standard case management by setting out scheduling orders, supervise discovery and assist the parties in preparation for trial. Specifically, the Court asked counsel: "So to the extent that, you know, obviously, we're doing things that are being filed and so forth now, which is what we're going to begin to do more and more of, I take it that [the] confidentiality question's not going to come into play then, right?" (01-MD-875 Doc. No. 7978, pg. 167). After discussion with counsel, the Court concluded that the general confidentiality policy would be lifted going forward, but that any documents that had been submitted as part of the mediation in the past would remain confidential. (Id., pgs. 167-68).

In preparation for the June 23, 2011 conference, this Court issued a June 3, 2011 letter order directing defense liaison counsel to submit to chambers by June 16, 2011 "any Daubert style objections." The Court anticipated receiving a short letter detailing the basic arguments that would be raised in future Daubert motions and an estimate of how many cases the defendants thought would be affected, or be rendered unsustainable by such motions. Instead, the Court received a document entitled "Certain Defendants' Motion for Leave for Discovery and Preliminary Daubert Objections to CVLO's Screened Cases with Reports By Drs. Schoenfeld, Sadek and Anderson by Healthscreen, Inc." ("Motion for Leave").*fn2 This motion was not filed. Several other defendants, however, filed notices of joinder with the Clerk and one of those defendants, Ericsson, Inc., attached the Motion for Leave as an exhibit to its June 24, 2011 filing.

On July 6, 2011, Mealey's Litigation Report: Asbestos published an article entitled "Asbestos MDL Defendants: Litigation Screening at Heart of Law Firm's Cases." This article contained information which Plaintiffs assert was "in defendants' Daubert pleadings in breach of the confidentiality order." Plaintiffs further assert that "Since [they] did not disclose, the likely culprits are the defendants." This Petition followed.

2. DISCUSSION

Initially we note that Plaintiff's Petition has not been filed. Ostensibly, Plaintiffs did not effectuate a filing because of a concern with respect to confidentiality. Plaintiffs did not, however, act upon this concern by seeking permission of the Court to have the Petition filed under seal or by consulting with E.D. Pa. Loc. R. Civ. ...


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