Biglaw

Arnold & Porter Tries To 'Slip' One Past The Goalie, Gets Benchslapped For Its Efforts

Well, it could have been worse.

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Oh, the foibles of discovery are just the gift that keeps on giving, ya know?

The latest example of Biglaw discovery antics comes to us from the folks at Arnold & Porter Kaye Scholer. They represent Endo Pharmaceuticals in New York’s multidefendant opioid trial. Former state appellate judge Joseph Maltese was appointed as a referee by Suffolk County Supreme Court Justice Jerry Garguilo to evaluate discovery disputes and it didn’t work out great for the Biglaw firm. Maltese recommended the award of costs and that Garguilo should consider monetary sanctions. So what exactly happened?

As it turns out, it wasn’t that they didn’t produce relevant documents, but that they were “deficient in not timely disclosing” them. The documents were stuff that A&P “should have known the full extent of” because they were sanctioned over similar issues in another litigation. As reported by Law.com:

In August, the firm produced an email sent by a former Endo employee in 2009 in federal court in San Francisco but did not produce it in New York. It also “slipped…voluminous” documents into the federal multidistrict opioid litigation, Maltese found.

Maltese wrote that Arnold & Porter may have taken those steps “in the hope that the plaintiffs counsel was preoccupied with the ongoing trial to notice them.”

“Placing those documents in the federal MDL document database, while accessible to the plaintiffs’ counsel, did not give them or the Court timely notice of their existence for possible use in this trial,” Maltese wrote. “Therefore, APKS was deficient in not timely disclosing those documents. Consequently, all of the plaintiffs were prejudiced by this delay and accordingly, the Court should fashion an equitable remedy for this failure to timely disclose those documents.”

And though Maltese seemed none too pleased with A&P’s behavior, he said “it is not warranted or recommended” for Garguilo to discharge Arnold & Porter from the representation and he recommended against discharging A&P partner Pamela Yates, who was admitted pro hac vice for the case, and against referring Yates for discipline in California, where she is admitted. And in the firm’s statement, they are definitely leaning into whatever Ws they can:

“While we do not agree with all of the statements made in this report, we are gratified that the referee rejected the vast majority of plaintiffs’ unfounded allegations and attacks on the integrity of our firm,” the statement said.

But as you might imagine, the reaction from those on the other side of the caption is a different take:

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“Discovery gamesmanship will not be tolerated in [New York], especially when, as here, failure to provide relevant discovery directly prejudiced plaintiffs’ prosecution of its case,” said Jayne Conroy of Simmons Hanly Conroy, counsel for Suffolk County.

Paul Napoli of Napoli Shkolnik, who represents Nassau County, said the report “confirmed Arnold & Porter’s reprehensible conduct.”

“Today’s recommendation is the first step in holding the law firm and its lawyers accountable for hiding relevant documents of its client’s bad conduct,” he said.

And because the benchslap comes in the massive legal morass that is opioid litigation, Conroy — along with her co-counsel for the plaintiffs’ executive committee in the national prescription opioid litigation — said they expect there to be “grave ramifications” in other cases nationwide:

“Referee Justice Maltese’s decision will send shockwaves through all of the major defense firms in the opioid litigation, and spark similar recommendations in federal court and other jurisdictions where Endo is represented by APKS,” they said.

Ah, discovery sanctions — the stuff that dreams are made of.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

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