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Pot Calling the Kettle Black

The Drug and Device Law Blog has an articulate rant about plaintiffs’ lawyers jerking around defendants on whether certain documents produced should be deemed confidential. The core of their argument is that plaintiffs’ interests in the battle over confidential documents is either for (1) sport, or (2) to shop documents obtained in discovery to the press.
There is some measure of truth to almost the entire post. But it is as if Tiger Woods told the following story: “I was looking forward to a nice Thanksgiving weekend with my family but on Sunday my wife just left. Didn’t say good-bye or anything.” That’s a true story.
Similarly, the Drug and Device Law Blog leaves out a little fact of the story: mass tort defense lawyers are the undisputed kings of making plaintiffs’ lawyers work for pure sport. Plaintiffs’ lawyers in drug and device cases largely just want to get from Point A to Point B as quickly as possible. I think this is a function both of the personality types attracted to these very different jobs (and I’ve done both) and fundamental economics: plaintiffs’ lawyers get paid for success while defense lawyers get paid for working, even if they are just creating work.
The Drug and Device Law Blog freely admits that defendants do designate too many documents as confidential because “it’s hard to analyze the confidentiality of millions of documents and get every call exactly right.” (Y’all do this on privileged documents too, a practice that usually goes by unchecked.) So, their thinking goes, “if one errs on the side of over-designation, the documents can be de-designated and nobody is hurt.” So it is a hassle to do the job right the first time even though you billed the client $85 gazillion dollars for the document review. And the court’s order didn’t say, “Hey, when it doubt, just mark it confidential, we will put the burden on plaintiffs’ lawyers to have to run back to me to get it straight.”
Moreover, making documents public that show what drug companies are actually doing may serve plaintiffs’ lawyers’ interests but it also serves the public good. If you are taking a drug and the manufacturer has documents showing they are burying studies that reveal the drug has risks not fully disclosed, isn’t it a good thing if the patient and the doctor read about this in The Washington Post? The fact that the documents show you are misleading patients and their doctors is not confidential. The blog post suggests the problem is that drug companies don’t properly answer the charges in the media. Okay. But you can’t suggest the public does not have the right to know because you don’t have the time, energy, inclination or PR staff to respond.
I would have been far more okay with this blog post if after it was done suggesting plaintiffs’ lawyers sadistically are creating work, it would have had something thrown in there about the fact that defense lawyers are far more guilty of this than plaintiffs’ lawyers. Because, believe me, it is undeniable.