(Maksym Yemelyanov – Fotolia)
Lawyers for the plaintiffs alleging price-fixing among major makers of drywall will have to divulge the facts that support their claims while discovery is ongoing, the federal judge handling the multidistrict litigation has ruled.
U.S. District Senior Judge Michael M. Baylson of the Eastern District of Pennsylvania said that since information disclosed during discovery is electronically stored information, or ESI, he would grant the defendants’ motion to compel specific identification of key materials backing the plaintiffs’ claim.
The defendants had asked Baylson to require the plaintiffs to identify what materials are alleged to have been the subject of the price-fixing scheme, who the players are alleged to be, and the dates and locations of the alleged meetings.
“Because defendants have represented that they have largely completed their document production and plaintiffs have shown in some of their briefs that they have acquired detailed knowledge of some of the documents produced, the court concludes that defendants’ request is not premature, given the abilities of an ESI base and search program for finding documents,” Baylson said.
He later explained the significant impact that electronic discovery has on this kind of issue.
“The benefits of these ESI tools substantially reduce the burden on plaintiffs to provide the facts that the defendants have requested,” Baylson said.
“Rulings on discovery in 2014 must recognize we live in a world of ESI, which supports the court’s requirement that counsel submit pretrial factual statements as part of discovery, in part because doing so is not burdensome,” the judge said.
From the start of his opinion, Baylson focused on the changing landscape of discovery in light of ESI.
“Ignoring the capabilities which ESI allows the parties to search for and produce factual information in a case of this nature is like pretending businesses still communicate by smoke signals,” he said, setting up the opinion.
Although recognizing that the plaintiffs wouldn’t yet have an exhaustive list of answers for the defense’s questions, the judge said, “Defendants have a reasonable need to know the identities of the products, individuals who discussed prices with competitors, and the dates and substance of the communications, to proceed with their own effective discovery and investigation.”
Making those disclosures before discovery is closed will smooth out this complex case by facilitating more productive discovery as both parties will be better able to shape their requests when they understand what the other party is finding, Baylson said. Exchanging information at this point will also help both sides to see the strengths and weaknesses of the case, which could encourage settlement negotiations at an earlier point in the litigation, he said.
Baylson ordered the plaintiffs’ counsel, rather than the plaintiffs themselves, to answer the defendants’ interrogatories, due to the size and complexity of the case.
“In an antitrust case, the facts are largely gathered by counsel based on interviewing their clients, reviewing documents produced by the opposing party, conducting investigations, and consulting experts in the field and economic data,” Baylson said. “Thus, in an antitrust case, counsel are more appropriately in possession of facts than the plaintiffs themselves.”
The defense counsel are to be under the same obligations, Baylson said.
Within 45 days, the plaintiffs lawyers must file a statement with the dates of meetings where prices were allegedly discussed, the names of the attendees and the names of employees believed to have communicated about fixing prices, and identification of the materials that were part of the price-fixing scheme.
The defense will have to respond to the plaintiffs’ statement after more discovery has taken place and will include any further witnesses to the meetings or communications and the names of any of the plaintiffs’ employees on whom they plan to rely for their defense, according to the opinion.
Neither Michael McLaughlin of Butler Pappas Weihmuller Katz Craig in Philadelphia, who represented the defendants, nor Brent Johnson of Cohen Milstein Sellers & Toll in Washington, D.C., who represented the plaintiffs, could be reached for comment.
(Copies of the 12-page opinion in In re Domestic Drywall Antitrust Litigation, PICS No. 14-0745, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •