October 31, 2006
Supreme Court to Hear Case Against Philip Morris USA
Jesse Williams was a devoted husband and father who worked as a school custodian in Portland, Ore. He began smoking Marlboro cigarettes in his early twenties. Over the next 47 years, he developed a three pack-a-day habit, ignoring the large amounts of evidence compiled in that time that documented tobacco’s hazardous health effects. The undeniable proof for Williams, unfortunately, came in the form of an inoperable lung cancer diagnosis. Six months later, he was dead. He was 67.
In May of 1997, Williams’ widow, Mayola, filed a lawsuit in an Oregon trial court against Philip Morris Inc., the parent company of Marlboro brand cigarettes, claiming the company knew for 50 years of the potential health risks its product posed, but failed to inform the public of those risks.
The trial began in February of 1999. Attorneys representing Williams argued that the efforts by Philip Morris to hide the dangers of smoking went well beyond simply ignoring the evidence. Rather a deliberate, clandestine campaign to dispel public concerns by instilling false impressions of serious debate going on within the scientific community over smoking’s hazardous effects.
On March 31, a jury found Philip Morris had engaged in negligent and fraudulent practices, which made the company, along with Jesse Williams, equally at fault for his death and awarded $821,485 in compensatory damages.
What happened next would stand as the basis for a legal fight over the role monetary awards should, or should not play in punishing corporate misconduct.
In addition to compensatory damages, the jury found the fraud Philip Morris had perpetrated to be systemic, affecting a large group of individuals over a 50-year period, and awarded $79.5 million in punitive damages.
The trial judge in the case found that though the large punitive award “...was within the range a rational juror could assess based on the record as a whole,” it was “...excessive under federal standards,” and reduced the amount to $32 million.
The ruling was appealed by both Williams and Philip Morris to the Oregon Court of Appeals, where on June 5, 2002, the court reversed the trial judge’s decision to reduce the award and reinstated the $79.5 million, rejecting Philip Morris’s appeal. An appeal to the Oregon Supreme Court produced the same result for the tobacco giant. Read More

June 12, 2006
Companies Seek Dismissal of Thousands of Asbestos Cases
The motion was filed before U.S. District Judge James T. Giles, who is presiding over a case known as MDL 875, the name for the multidistrict litigation in which all pending federal asbestos claims were consolidated. In the motion, the asbestos defendants are asking Giles to do two things. First, they want the judge to exclude all expert testimony from six doctors who the companies say either have taken the Fifth Amendment against self-incrimination when asked to testify about their methods or have disavowed diagnoses attributed to them. Read More

May 20, 2006
Assessing the Importance of Voice Mail In Discovery
Discovery of voice mail messages in civil litigation has been increasing over the past few years. Once generally ignored—or available only at significant expense—voice mail messages are recognized today as interesting sources of unfiltered information that may not be reflected elsewhere in written records. Though not all litigation matters or internal investigations would gather substantive, unique information by reviewing voice mail messages, at the very least, these electronic documents are now an information source that should be considered in developing any discovery plan. Read More

May 19, 2006
Citing Sedona Principles, State Court Allows Forensic Imaging of Former Employee’s Home Computer
In this case, Quotient alleged that while still a Quotient employee, Mr. Toon intentionally and surreptitiously provided a former Quotient employee access to Quotient's computer system so that the former employee could obtain Quotient's trade secrets and confidential information and use such information to compete with Quotient. Quotient sought an order to permit Quotient's retained computer expert access to “Toon's personal computer system, hard drives and back-up hard drives, disks, C.D.'s and/or other data, back up devices or vehicles in order to capture an image of these items.” Quotient represented it would pay the full and complete cost of the copying process and would abide by any restriction on access and use imposed by the court. Read More

Spring, 2006
Evaluating the Proposed Changes to Federal Rule of Civil Procedure 37:
Spoliation, Routine Operation and the Rules Enabling Act

The Judicial Conference of the United States has approved and sent to the Supreme Court several amendments and proposed changes to the Federal Rules of Civil Procedure relating to the discovery of electronic information. The Rules Advisory Committee has recognized that, in relation to traditional documents, electronic data poses unique problems in the discovery context. These problems are largely attributable to the sheer volume of electronic data available compared to traditionally discoverable documents. To further complicate matters, most traditional documentation is stored for archival purposes; however, electronic data exists in many task specific forms. Therefore, a significant amount of electronic data exists, not as an archive, but for some other system-related purposes such as reserving hard-drive space for overwriting. Since certain data in a given system often serves a temporary purpose unrelated to the archiving of user data, the inadvertent spoliation of electronic information is likely and therefore poses a serious sanction risk for companies facing litigation. Read More

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