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After reading Sleazy in Seattle (click to access), please comment here to each of the following questions:
- How does the behavior of the attorneys at Bogle and Gates raise concerns about legal ethics in this case? Include specific examples from the discovery process.
- What do you think of the attorney’s duty to “zealously advocate” for their clients in this case? Do you agree with the experts that the behavior of the law firm was appropriate and responsible, or do you agree with Washington State Supreme Court’s interpretation, and why?
- Reflect on your course UCOR 2910: “Ethical Reasoning in Business,” or any other ethics course you took in the UCOR. Depending on when you took it, and who your professor was, you may have used different terms or a different framework to think about ethical values. But you likely can at least appreciate these five values:
- Autonomy: a person’s ability to govern herself and to order her own life (as the ethicists say, to be an ‘end in herself’) implies that she must not be used as a means to an end that she did not choose (most closely associated with deontology)
- Non-pain/Pleasure: an person’s capacity to experience pain or pleasure implies that I must not cause him pain unnecessarily (most closely associated with utilitarianism)
- Equality: a person must not be regarded or treated as inferior to or superior to other persons
- Cooperation: when people cooperate, they form trust, and living in a high- trust environment makes possible many of the things we associate with a good life (most closely associated with contractarianism)
- Character Excellence: I should want to be the kind of person who enjoys doing ethical things and doesn’t enjoy doing unethical things. If so, I am a person with an excellent or virtuous character, and this is widely regarded as a source of personal well-being. However, by doing unethical things, I may harm or corrupt my own character (most closely associated with virtue ethics)
Which values would you focus on if you were a manager at Fisons, the pharmaceutical company in the case? What course of action would you have taken if you were the manager and you were aware of the case specifics regarding drug testing and what the company knew about the effects of taking the drug?
1/11/2015
Sleazy In Seattle | Stuart Taylor, Jr.
Sleazy In Seattle
by Stuart Taylor, Jr
D
iscovery is the bread and butter of most
big-firm litigators. But the most
important and ethically sensitive
decisions the make-choosing when and how to
avoid disclosing damming evidence to
adversaries-are almost always veiled in secrecy.
Now an anonymous whistle-blower in a case near
Seattle has helped give as a revealing glimpse into
how litigators reconcile their duties to be zealous
advocates with their duties not to be whores. It’s
not a pretty picture and it involves one of Seattle’s
largest and most prestigious firms.
The covered-up corporate document that the whistle-blower
leaked in March 1990 led to an agreement this January by
Seattle’s 200-lawyer Bogle & Gates and its client Fisons Corp.
to pay $325000 in sactions for discovery abuse, one of the
largest such awards ever. By misleading its adversaries to
avoid producing damning documents in its client’s files, Bogle
provided a textbox example of the need for discovery reforms
even more far-reaching than those that were adopted last year
by the federal judiciary-reforms that are still under attack in
Congress. (On which more below.)
What prompted the settlement was a unanimous Washington
Supreme Court decision last September 16, and the prospect
of an evidentiary hearing on remand that would have made
Bogle’s conduct look even worse than it looks in the court’s
sternly worded opinion.
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The seven justices held that Bogle & Gates and its client, a
British-owned pharmaceutical company with U.S.
headquarters near Rochester, had used “misleading” discovery
responses to hide two I “smoking gun documents” from
lawyers for a 3-year-old girl who suffered permanent brain
damage as a result of taking a i Fisons asthma drug in 1986, as
well as from lawyers for the girl’s pediatrician, who had filed a
cross-claim against Fisons.
Since the decision, Bogle has been forced to admit for the first
time that it had had the smoking gun documents since l 1987
and had advised Fisons to withhold them-while at the same
time, in the supreme court’s words, making statements to
opposing counsel “that all relevant documents had been
produced.” These statements were accompanied by artfully
worded discovery responses that Bogle later claimed (in a
rationale rejected by the court) should have put its adversaries
on notice that relevant documents would be produced only if
found in a particular : Fisons product file
What makes the case important is not so much that one big
law firm was capable of engaging in conduct that stunk so
badly but that it was able to find 14 leading liti gation experts
to swear that this conduct smelled just fine to them, and to
persuade a special master and two superior court judges that
this is the way the adversary system is supposed to work.
It’s also remarkable that the Washington State Bar Association
is not, it con firms, even investigating the conduct of Guy
Michelson and Kevin Baumgardner, the two Bogle partners
who stand accused by opposing counsel of having made
representations (under oath, in one case) to their
representation (under oath in one case) to their adversaries
and the superior court that were “deliberately or recklessly
false and intended to deceive.” The court record bears out the
accusations.
The expert flotilla included $500-an-hour Yale Law professor
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Sleazy In Seattle | Stuart Taylor, Jr.
Geoffrey Hazard Jr., perhaps the nation’s most prominent
legal ethics expert [see “Hazardous Duty Pays,” page 60], and
leading Washington State litigators including ten fellows of
the prestigious American College of Trial Lawyers, of whom
two are also past presidents of the Washington State Bar
Association.
All 14 experts said that Bogle’s conduct had been nondeceptive
and ethically proper; most suggested that such conduct was
standard operating procedure in the adversary system; and
three suggested that Bogle’s conduct had been required by the
lawyers’ “ethical obligation to zealously represent their client,”
in the words of Payton Smith, chairman of the litigation
department of Davis Wright Tremaine, Seattle’s largest law
firm.
You be the judge of whether Bogle’s conduct was honest,
whether such practices are the norm, and-if they are- whether
they ought to be.
Bogle and Fisons were initially exonerated of discovery abuse
by the special master overseeing discovery in the case and by
two successive superior court judges, including Judge Stuart
French of Snohomish County Superior Court (north of
Seattle), who presided over the 1990 trial of the underlying
tort case. Judge French rejected a motion for sanctions and
signed an opinion (drafted by lawyers for Bogle and Fisons)
finding that all of the discovery responses had been
“reasonable and proper,” and that “the conduct of Fisons and
its counsel…was consistent with the customary and accepted
litigation practices in the bar of this community and this state”
Customery or not, “the conduct in this case sinks. “in the
words of Stephen Saltzburg, a George Washington University
law professor who pressed the pediatrician’s claim that Fisons
and Bogle should be sanctioned and won it on appeal. “The
conduct of Fisons and Bogle explains why so many ordinary
people have losaith in the litigation system and the adversary
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Sleazy In Seattle | Stuart Taylor, Jr.
process, and believe that lawyers are untrust worthy,” as
Saltzburg argued in one legal brief.
BUSINESS AS USUAL?
But Bogle’s experts may have been right, I fear, insofar as they
suggested that many and perhaps even most litigators engage
under cover of darkness in the kind of conduct that is
fortuitously brought to light in this case. If so, then the
discovery process has been clogged by a culture of evasion and
deceit that accounts for much of its grotesque wastefulness,
and the adversary system has been perverted from an engine
of truth into a license for lawyerly lies.
Asked for Bogle’s comment on the case, Richard Wallis, the
managing partner, says: “It is our view that the Supreme
Court’s decision is a ‘course correction’ for the entire legal
profession…Bogle & Gates-like other firms in this state-will
now pursue discovery on behalf of our clients in a manner
consistent with this ruling. It is our position that Bogle &
Gates was, in this case, operating in good faith within the
standards of practice followed by attorneys in this state at the
time these discovery responses were made.”
Wallis stresses a speech last November in which Washington
Supreme Court justice Robert Utter characterized the decision
as “revolutionary” and said that “in fairness, it should be
noted that defense counsel…did not have the benefit of
advance notice about the court’s expansive interpretation” of
counsel’s obligations in discovery.
No such words in mitigation of Bogle’s conduct appear in the
court’s opinion.
Asked for Fisons’s comment, associate general counsel Barry
Berger said: “I have a high personal and professional regard
for Bogle & Gates, but as the documents we and they filed in
the case indicate, we essentially relied on advice of counsel…I
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Sleazy In Seattle | Stuart Taylor, Jr.
think Bogle & Gates gave the advice in good faith and it was
relied on in good faith.”
Bogle and Fisons blame Joel Cunningham of Seattle’s
Williams, Kastner & Gibbs (who brought the pediatrician’s
cross-claim against Fisons) and the injured child’s lawyers
(including Paul Lu-vera, the top plaintiffs lawyer in the state)
for the decisions by Bogle and Fisons no to hand over the
smoking gun documents.
Cunningham “had only himself to blame,” William Helsell of
Seattle’s Helsell, Fetterman, Martin, Todd & Hokanson, who
represented Bogle & Gates and Fisons in the sanctions
proceeding, told the state supreme court. Helsell, a muchadmired leader of the Seattle bar and Bogle’s litigation experts
claimed that Cunningham and the injured child’s lawyers
failed to ask the right questions or to press their adversaries
hard enough for responsive answers.
Did they? Read on
THE UNDERLYING FACTS
In January 1986, 3-year-old Jennifer Pollock, a child with
multiple health problems, suffered seizures and permanent
brain damage as a result of being treated with Fison’s
Somophyllin Oral Liquid for her serve lung disease (including
asthma) at a time when she also had a viral infection. The
product’s main active ingredient is a generic drug called
theophylline. The cause of Jennifer’s brian damages was (the
litigation established) that the theophylline in her blood
soared to toxic levels as a result of ther viral infection.
Jennifer’s parent filed a products liability suit against Fisons
along with a malpractice suit against Dr. James Klicpera, the
Everett, Washington, Pediatrician who had prescribed the
drug. He and his insurer cross-claimed against Fisons,
alleging that the company had known, and had failed to warn
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Sleazy In Seattle | Stuart Taylor, Jr.
him, that theophylline posed a serious risk of nervous system
damage when used to treat children with viral infections.
Fisons defended on the grounds that (among other things) it
had disclosed all known risks, and that Dr. Klicpera had
caused Jennifer’s injuries by negligently failing to monitor her
theophylline levels and prescribing an overdose.
In October 1986 Cunningham, Dr. Klicpera’s counsel, served
Fisons with four brief requests for production of documents,
including this: “Produce genuine copies of any letters sent by
your company to physicians concerning theophylline toxicity
in children.”
SMOKING GUN NO. 1
This fit one of the smoking gun documents like a glove: a June
1981 letter sent by Fisons’s manager of marketing and medical
communications, Cedric Grigg, to a select group of 2,000
physicians around the country (not inducing Dr. Klicpera).
Addressed “Dear Doctor,” and entitled “Re: Theophylline and
Viral Infections,” the letter warned that it “can be a capricious
drug,” Grigg stressed a published study showing “lifethreatening theophylline toxicity when pediatric asthmatics
on previously well tolerated doses of heophylline contract viral
infections.” The letter, which was approved by high-level
Fisons executives, promoted another Fisons product for
treatment of asthma, called Intal, as safer than competing
drugs based on theophylline.
The document certainly sounded like it came within the
discovery request. And here is how Fisons’s November 1986
discovery response, prepared by Bogle lawyers, read: “Such
letters, if any, regarding Somophyllin Oral Liquid will be
produced at a reasonable time and place convenient to Fisons
and its counsel of record.” (Emphasis in original.) So you
might think the letter would be produced.
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But in fact, Fisons and Bogle-which says it first learned in
March 1987 about the 1981 Grigg smoking gun letter-decided
not to produce it, then or ever. And later, they argued that
they had acted properly because they had had no obligation to
produce it. (See if you can guess the Fisons-Bogle rationale;
then look under the “Rationales for Concealment” subhead
below to see if you were right.)
Cunningham, the pediatrician’s lawyer, says (as did Jennifer
Pollock’s lawyers) that Fisons and Bogle misled him into
believing that there were no documents responsive to his
request.
“I expected that I would get an honest answer to an honest
question,” he recalls. But he did not get the 1981 Grigg letter
until March 15, 1990-some 40 months after his request, and
three years after Bogle got the letter-when the anonymous
whistle-blower sent it to Cunningham via U.S. mail. By that
time, Bogle and Fisons had parried many more discovery
requests, and Dr. Klicpera had settled the brain-damaged
child’s malpractice suit for what amounted (after various
contingencies) to a $500,000 payment by his insurer.
The leak of the 1981 Grigg letter prompted the courtappointed special master in charge of discovery in the case,
Peter Byrnes, to demand on March 28, 1990, that Bogle and
Fisons stop playing games and hand over-the next day-any
other theophylline-related documents of which they had
copies at hand. (Byrnes, a former Bogle & Gates partner, was
chosen with Cunningham’s assent.)
Byrnes said that Fisons’s “nonresponse” to Cunningham’s
request was “troubling,” but that “the plaintiff was not witho…
Discovery is the bread and butter of most big-firm litigators.
But the most important and ethically sensitive decisions the
make-choosing when and how to avoid disclosing damming
evidence to adversaries-are almost always veiled in secrecy.
7/27
1/11/2015
Sleazy In Seattle | Stuart Taylor, Jr.
Now an anonymous whistle-blower in a case near Seattle has
helped give as a revealing glimpse into how litigators reconcile
their duties to be zealous advocates with their duties not to be
whores. It’s not a pretty picture and it involves one of Seattle’s
largest and most prestigious firms.
The covered-up corporate document that the whistle-blower
leaked in March 1990 led to an agreement this January by
Seattle’s 200-lawyer Bogle & Gates and its client Fisons Corp.
to pay $325000 in sactions for discovery abuse, one of the
largest such awards ever. By misleading its adversaries to
avoid producing damning documents in its client’s files, Bogle
provided a textbox example of the need for discovery reforms
even more far-reaching than those that were adopted last year
by the federal judiciary-reforms that are still under attack in
Congress. (On which more below.)
What prompted the settlement was a unanimous Washington
Supreme Court decision last September 16, and the prospect
of an evidentiary hearing on remand that would have made
Bogle’s conduct look even worse than it looks in the court’s
sternly worded opinion.
The seven justices held that Bogle & Gates and its client, a
British-owned pharmaceutical company with U.S.
headquarters near Rochester, had used “misleading” discovery
responses to hide two I “smoking gun documents” from
lawyers for a 3-year-old girl who suffered permanent brain
damage as a result of taking a i Fisons asthma drug in 1986, as
well as from lawyers for the girl’s pediatrician, who had filed a
cross-claim against Fisons.
Since the decision, Bogle has been forced to admit for the first
time that it had had the smoking gun documents since l 1987
and had advised Fisons to withhold them-while at the same
time, in the supreme court’s words, making statements to
opposing counsel “that all relevant documents had been
produced.” These statements were accompanied by artfully
8/27
1/11/2015
Sleazy In Seattle | Stuart Taylor, Jr.
worded discovery responses that Bogle later claimed (in a
rationale rejected by the court) should have put its adversaries
on notice that relevant documents would be produced only if
found in a particular : Fisons product file
What makes the case important is not so much that one big
law firm was capable of engaging in conduct that stunk so
badly but that it was able to find 14 leading liti gation experts
to swear that this conduct smelled just fine to them, and to
persuade a special master and two superior court judges that
this is the way the adversary system is supposed to work.
It’s also remarkable that the Washington State Bar Association
is not, it con firms, even investigating the conduct of Guy
Michelson and Kevin Baumgardner, the two Bogle partners
who stand accused by opposing counsel of having made
representations (under oath, in one case) to their
representation (under oath in one case) to their adversaries
and the superior court that were “deliberately or recklessly
false and intended to deceive.” The court record bears out the
accusations.
The expert flotilla included $500-an-hour Yale Law professor
Geoffrey Hazard Jr., perhaps the nation’s most prominent
legal ethics expert [see “Hazardous Duty Pays,” page 60], and
leading Washington State litigators including ten fellows of
the prestigious American College of Trial Lawyers, of whom
two are also past presidents of the Washington State Bar
Association.
All 14 experts said that Bogle’s conduct had been nondeceptive
and ethically proper; most suggested that such conduct was
standard operating procedure in the adversary system; and
three suggested that Bogle’s conduct had been required by the
lawyers’ “ethical obligation to zealously represent their client,”
in the words of Payton Smith, chairman of the litigation
department of Davis Wright Tremaine, Seattle’s largest law
firm.
9/27
1/11/2015
Sleazy In Seattle | Stuart Taylor, Jr.
You be the judge of whether Bogle’s conduct was honest,
whether such practices are the norm, and-if they are- whether
they ought to be.
Bogle and Fisons were initially exonerated of discovery abuse
by the special master overseeing discovery in the case and by
two successive superior court judges, including Judge Stuart
French of Snohomish County Superior Court (north of
Seattle), who presided over the 1990 trial of the underlying
tort case. Judge French rejected a motion for sanctions and
signed an opinion (drafted by lawyers for Bogle and Fisons)
finding that all of the discovery responses had been
“reasonable and proper,” and that “the conduct of Fisons and
its counsel…was consistent with the customary and accepted
litigation practices in the bar of this community and this state”
Customery or not, “the conduct in this case sinks. “in the
words of Stephen Saltzburg, a George Washington University
law professor who pressed the pediatrician’s claim that Fisons
and Bogle should be sanctioned and won it on appeal. “The
conduct of Fisons and Bogle explains why so many ordinary
people have losaith in the litigation system and the adversary
process, and believe that lawyers are untrust worthy,” as
Saltzburg argued in one legal brief.
BUSINESS AS USUAL?
But Bogle’s experts may have been right, I fear, insofar as they
suggested that many and perhaps even most litigators engage
under cover of darkness in the kind of conduct that is
fortuitously brought to light in this case. If so, then the
discovery process has been clogged by a culture of evasion and
deceit that accounts for much of its grotesque wastefulness,
and the adversary system has been perverted from an engine
of truth into a license for lawyerly lies.
Asked for Bogle’s comment on the case, Richard Wallis, the
managing partner, says: “It is our view that the Supreme
10/27
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Sleazy In Seattle | Stuart Taylor, Jr.
Court’s decision is a ‘course correction’ for the entire legal
profession…Bogle & Gates-like other firms in this state-will
now pursue discovery on behalf of our clients in a manner
consistent with this ruling. It is our position that Bogle &
Gates was, in this case, operating in good faith within the
standards of practice followed by attorneys in this state at the
time these discovery responses were made.”
Wallis stresses a speech last November in which Washington
Supreme Court justice Robert Utter characterized the decision
as “revolutionary” and said that “in fairness, it should be
noted that defense counsel…did not have the benefit of
advance notice about the court’s expansive interpretation” of
counsel’s obligations in discovery.
No such words in mitigation of Bogle’s conduct appear in the
court’s opinion.
Asked for Fisons’s comment, associate general counsel Barry
Berger said: “I have a high personal and professional regard
for Bogle & Gates, but as the documents we and they filed in
the case indicate, we essentially relied on advice of counsel…I
think Bogle & Gates gave the advice in good faith and it was
relied on in good faith.”
Bogle and Fisons blame Joel Cunningham of Seattle’s
Williams, Kastner & Gibbs (who brought the pediatrician’s
cross-claim against Fisons) and the injured child’s lawyers
(including Paul Lu-vera, the top plaintiffs lawyer in the state)
for the decisions by Bogle and Fisons no to hand over the
smoking gun documents.
Cunningham “had only himself to blame,” William Helsell of
Seattle’s Helsell, Fetterman, Martin, Todd & Hokanson, who
represented Bogle & Gates and Fisons in the sanctions
proceeding, told the state supreme court. Helsell, a muchadmired leader of the Seattle bar and Bogle’s litigation experts
claimed that Cunningham and the injured child’s lawyers
11/27
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Sleazy In Seattle | Stuart Taylor, Jr.
failed to ask the right questions or to press their adversaries
hard enough for responsive answers.
Did they? Read on
THE UNDERLYING FACTS
In January 1986, 3-year-old Jennifer Pollock, a child with
multiple health problems, suffered seizures and permanent
brain damage as a result of being treated with Fison’s
Somophyllin Oral Liquid for her serve lung disease (including
asthma) at a time when she also had a viral infection. The
product’s main active ingredient is a generic drug called
theophylline. The cause of Jennifer’s brian damages was (the
litigation established) that the theophylline in her blood
soared to toxic levels as a result of ther viral infection.
Jennifer’s parent filed a products liability suit against Fisons
along with a malpractice suit against Dr. James Klicpera, the
Everett, Washington, Pediatrician who had prescribed the
drug. He and his insurer cross-claimed against Fisons,
alleging that the company had known, and had failed to warn
him, that theophylline posed a serious risk of nervous system
damage when used to treat children with viral infections.
Fisons defended on the grounds that (among other things) it
had disclosed all known risks, and that Dr. Klicpera had
caused Jennifer’s injuries by negligently failing to monitor her
theophylline levels and prescribing an overdose.
In October 1986 Cunningham, Dr. Klicpera’s counsel, served
Fisons with four brief requests for production of documents,
including this: “Produce genuine copies of any letters sent by
your company to physicians concerning theophylline toxicity
in children.”
SMOKING GUN NO. 1
This fit one of the smoking gun documents like a glove: a June
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Sleazy In Seattle | Stuart Taylor, Jr.
1981 letter sent by Fisons’s manager of marketing and medical
communications, Cedric Grigg, to a select group of 2,000
physicians around the country (not inducing Dr. Klicpera).
Addressed “Dear Doctor,” and entitled “Re: Theophylline and
Viral Infections,” the letter warned that it “can be a capricious
drug,” Grigg stressed a published study showing “lifethreatening theophylline toxicity when pediatric asthmatics
on previously well tolerated doses of heophylline contract viral
infections.” The letter, which was approved by high-level
Fisons executives, promoted another Fisons product for
treatment of asthma, called Intal, as safer than competing
drugs based on theophylline.
The document certainly sounded like it came within the
discovery request. And here is how Fisons’s November 1986
discovery response, prepared by Bogle lawyers, read: “Such
letters, if any, regarding Somophyllin Oral Liquid will be
produced at a reasonable time and place convenient to Fisons
and its counsel of record.” (Emphasis in original.) So you
might think the letter would be produced.
But in fact, Fisons and Bogle-which says it first learned in
March 1987 about the 1981 Grigg smoking gun letter-decided
not to produce it, then or ever. And later, they argued that
they had acted properly because they had had no obligation to
produce it. (See if you can guess the Fisons-Bogle rationale;
then look under the “Rationales for Concealment” subhead
below to see if you were right.)
Cunningham, the pediatrician’s lawyer, says (as did Jennifer
Pollock’s lawyers) that Fisons and Bogle misled him into
believing that there were no documents responsive to his
request.
“I expected that I would get an honest answer to an honest
question,” he recalls. But he did not get the 1981 Grigg letter
until March 15, 1990-some 40 months after his request, and
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three years after Bogle got the letter-when the anonymous
whistle-blower sent it to Cunningham via U.S. mail. By that
time, Bogle and Fisons had parried many more discovery
requests, and Dr. Klicpera had settled the brain-damaged
child’s malpractice suit for what amounted (after various
contingencies) to a $500,000 payment by his insurer.
The leak of the 1981 Grigg letter prompted the courtappointed special master in charge of discovery in the case,
Peter Byrnes, to demand on March 28, 1990, that Bogle and
Fisons stop playing games and hand over-the next day-any
other theophylline-related documents of which they had
copies at hand. (Byrnes, a former Bogle & Gates partner, was
chosen with Cunningham’s assent.)
Byrnes said that Fisons’s “nonresponse” to Cunningham’s
request was “troubling,” but that “the plaintiff was not without
fault” in failing to clarify the response. He denied a motion for
discovery sanctions against Bogle and Fisons.
But, the special master said to the Bogle lawyers in a
telephone conference, “my hunch is that you have already
pulled them out… and they’ve already been assembled
somewhere.”
His hunch was right. Bogle lawyers had copies of the two
smoking guns and other theophylline-related documents in
Seattle.
SMOKING GUN NO. 2
A second document, produced at the same time, was a July
1985 memo from the same Cedric Grigg to a Fisons vicepresident, which obliterated whatever remained of Fisons’s
failure-to-warn defense.
The memo began: “An alarming trend seems to be surfacing in
the medical literature and as a manufacturer of theophylline
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products we need to be aware of it…[There has been] a
dramatic increase in reports of serious toxicity to theophylline
in 1985 medical journals.”
The memo went on to state that many doctors who prescribe
theophylline prod- promotional letters as ” ‘Dear Doctor’
letters” in internal communications.
“DUCKING AND DODGING”
Bogle’s 14 experts convinced Judge French of the legitimacy of
the Bogle-Fisons rationales. And, during the January 1991 oral
argument in the trial court on the discovery abuse issue,
William Helsell, counsel for Fisons and Bogle, made a virtue
of such concealment by asserting that it was required by
principles of legal ethics:
“All experienced trial lawyers do some ducking and dodging in
connection with discovery. And why do they do that? We do it
because we have a duty to our client…within the bounds of
honesty, to not give the opposition one piece of paper that
they don’t clearly and specifically ask for.” Of course, in this
case Bogle’s adversaries did clearly and specifically ask for the
1981 smoking gun document, and arguably the 1985
document as well-or at least their requests would be read that
way by anyone whose comprehension of English had not been
warped by years of exposure to the bizarre hermeneutics of
discovery practice.
You can judge from the excerpts in the box below whether
Bogle lawyers engaged only in permissible “ducking and
dodging”-or whether their statements were, in Saltzburg’s
words, “deliberately or recklessly false and intended to
deceive.”
THE SUPREME COURT RULES
The Washington Supreme Court would have no part of Bogle’s
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arguments on the discovery issues, however. In its September
16 decision, the court upheld the $1.1 million award to Dr.
Klicpera for injury to reputation as well as the fee award,
though reversing the pain and suffering award. More
significantly, it also reversed, as an abuse of discretion, Judge
French’s refusal to award sanctions under the state’s civil rule
regarding discovery abuse, which the supreme court was
construing for the first time.
“The drug company avoided production of these theophyllinerelated materials, and avoided identifying the manager of
medical communications [Cedric Grigg] as a person with
information about the dangers of theophylline, by giving
evasive or misleading responses to interrogatories and
requests for production,” the court held.
It refused to accept the if-it-isn’t-in-the-right-file-under-theright-name-we-won’t produce-it ploy, noting that none of the
parties had ever specified that the discovery would be limited
to documents in the “Somophyllin Oral Liquid files,” or that
documents concerning theophylline risks would be withheld if
they were filed elsewhere or did not contain the words
“Somophyllin Oral Liquid.” Nor had any party ever suggested
that that was what Fisons meant when it undertook to
produce only responsive documents “regarding Somophyllin
Oral Liquid,” the court held.
The court also cut through the twisted argument that the
Grigg documents regarding the dangers of theophylline-based
drugs were not documents “regarding Somophyllin Oral
Liquid” because they were not in that product’s file, saying
that “a document that warned of the serious dangers of the
primary ingredient of Somophyllin Oral Liquid is a document
regarding Somophyllin Oral Liquid.” After all, the court
pointed out, Fisons marketed this and its three other
Somophyllin products as brand-name embodiments of
theophylline.
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It added that, in light of the elaborate series of pretexts offered
by Fisons and Bogle for their acts of concealment, “it appears
clear that no conceivable discover request could have been
made by the doctor that would have uncovered the relevant
documents. The objections did not specify that certain
documents were not being produced. Instead, the general
objections were followed by a promise to produce requested
documents. These responses did not comply with either the
spirit or the letter of the discovery rules.”
Chief Justice James Andersen’s opinion also stressed that “a
spirit of cooperation and forthrightness during the discover
process is necessary for the proper functioning of modern
trials.” He said that “conduct is to be measured against the
spiructs “may not be aware of this alarming increase in
adverse reactions such as seizures, permanent brain damage,
and deaths,” and that the standard dosage level endorsed by
(among others) Fisons was “a significant ‘mistake.” Grigg
concluded: “This ‘epidemic’ of theophylline toxicity [would
justify a] corporate decision to cease promotional activities
with our theophylline line of products.”
This memo, and a number of other documents containing dire
warnings by Grigg about theophylline, would (as the state
supreme court held) have come to light much earlier if Bogle
and Fisons had responded candidly to any one of several
discovery requests made by the plaintiffs.
Ultimately, Fisons bought its way out of the lawsuit by the
injured child and her family for a whopping $6.9 million in
April 1990, less than a month after it had to cough up the
smoking gun documents. This amount set a local record. It
also constituted an admission by Fisons and Bogle of the
devastating impact that the previously withheld documents
would have had at trial.
But Dr. Klicpera, furious at the cover-up of such vital
evidence, pressed on with his cross-claim, seeking sanctions
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for discovery abuse and asserting that he would not have
agreed to his own settlement with the injured child’s family
had he known of the smoking gun documents.
In July 1990, after a monthlong trial, a jury decided for the
doctor on most of his failure-to-warn claims. The jury
displayed its disgust with Fisons and Bogle by awarding Dr.
Klicpera-whose evidence of actual damages was pretty thin,
and whom the jury found to be 3.3 percent contributorily
negligent-a generous $3.3 million. This included $1.1 million
for injury to his professional reputation and $2.1 million for
pain and suffering. (Punitive damages are not recoverable in
the state.)
Judge French compounded the blow by hitting Fisons with a
$450,000 attorneys’ fees award to Dr. Klicpera, although he
rejected the doctor’s discovery abuse motion. It was this case
that landed before the state supreme court and prompted its
decision against Bogle and its client.
RATIONALES FOR CONCEALMENT
In defending against these claims, Fisons and Bogle & Gates
insisted that their nondisclosure of the smoking gun
documents had been proper.
Their rationale as to the June 1981 smoking gun letter-which
was indisputably covered by Cunningham’s October 1986
request for production-was that Fisons’s inclusion of the
limiting phrase “regarding Somophyllin Oral Liquid” in its
November 1986 response had implicitly served notice on
Cunningham that Fisons objected to producing documents
responsive to his request, no matter how relevant, unless they
were kept in its “Somophyllin Oral Liquid files.”
Fisons and Bogle also seemed to interpret “regarding
Somophyllin Oral Liquid” as excluding any documents
(wherever filed) regarding the drug’s primary ingredient
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unless the brand name was cited. All copies of the two
smoking guns were (Fisons has claimed, without contradiction
so far) in the files for one of its other drugs, Intal, and those
documents did not mention Somophyllin Oral Liquid by
name.
Bogle and Fisons also claimed that they had served notice to
the same effect on all parties by making a general objection
from the outset of discovery to “all discovery requests
regarding Fisons products other than Somophyllin Oral
Liquid,” and they asserted that Jennifer Pollock’s counsel had
similarly limited the scope of discovery in their requests by
defining “the product” as Somophyllin Oral Liquid.
Bogle managing partner Richard Wallis stresses in written
responses to questions for this story: “This limitation on the
scope of discovery was first enunciated by our attorneys [in
November 1986] before they learned of the existence of any of
the Intal [smoking gun] documents…When we learned [in
1987] of the existence of the various Intal documents, the
issue then became whether we were under an affirmative
obligation to take the initiative and expand the existing
product scope of discovery to include the Intal files. …We
concluded in good faith that we did not have such an
affirmative obligation under the discovery rules, and in view of
our obligation to represent our client.”
But the devious thing about Bogle’s conduct was not its
November 1986 insertion of the phrase “regarding
Somophyllin Oral Liquid” into its response to a request for
production; it was Bogle’s unilateral and secret-and strainedinterpretation of that phrase as a license to withhold
documents highly relevant to the safety of Somophyllin Oral
Liquid if they happened to be found in files other than those
designated by Fisons as “Somophyllin Oral Liquid files.” With
this surreptitious, self-serving semantic gambit, Bogle and its
client withheld the crucial documents while leading their
adversaries to believe no such documents were withheld.
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Another document request, from the injured child’s lawyers,
seeking “any warning letters including ‘Dear Doctor’ letters or
warning correspondence to the medical professions regarding
the use of the drug Somophyllin Oral Liquid” also seems
clearly to cover the June 1981 smoking gun letter, the supreme
court stressed. In fact, Bogle later assured opposing counsel
and the court that it had produced any relevant “Dear Doctor’
letters.”
To explain away this particular whopper, after the leak of the
June 1981 letter, Bogle supplemented its twisted
interpretation of “regarding Somophyllin Oral Liquid” with
another, even more astonishing contention: It argued that the
June 1981 letter-which begins “Dear Doctor” and warns of
“life-threatening theophylline toxicity”-was not a “Dear
Doctor” letter! How so? Because, Bogle has contended, this is
a “term of art referring to a warning letter mailed at the FDA’s
request to all physicians in the United States.” Therefore,
Bogle suggests, its assurances that any relevant “Dear Doctor”
letters had been disclosed, and that there were no such letters,
were true.
On its face this is an excessively narrow and legalistic gloss on
the phrase. Moreover, Fisons’s officials had in fact referred to
the 1981 Grigg letter and similar it and purpose of the rules,
not against the standard of practice of the local bar…
Misconduct, once tolerated, will breed more misconduct, and
those who might seek relief against abuse will instead resort to
it in self-defense.”
The supreme court remanded the case to Judge French to
determine the amount of sanctions and who should pay, with
instructions to assess an amount “severe enough to deter these
attorneys and others from participating in this kind of conduct
in the future.”
On remand, Bogle strenuously opposed demands by Dr.
Klicpera’s counsel for a public evidentiary hearing at which
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Bogle partner Guy Michelson, other Bogle lawyers, and Fisons
officials could be cross-examined about their conduct and
about such questions as when various people at Fisons and
Bogle had learned of the smoking gun documents and how
much Bogle had been paid. Bogle sought to preempt the need
for any such hearing by filing an afliclavit in which Michelson
said he had advised Fisons not to disclose the 1981 and 1985
smoking gun documents, of which he admitted-for the first
time-he had known since (respectively) March and November
1987.
BOOLE AND FISONS SEITLE
Finally, in late January, Bogle and Fisons bought their way out
of a public hearing by agreeing to pay $325,000 in discovery
abuse sanctions to Dr. Klicpera’s insurer, and to state publicly
that Bogle admitted that i had violated the rules, and said it
had “taken steps to ensure that all attorneys at Bogle & Gates
understand that the rules . . . must be complied with in letter
and spirit.” Managing partner Wallis says the firm
“immediately” circulated copies of the decision “to all of our
attorneys who litigate in any fonn,” and followed up with
mandatory training sessions where four partners discussed
the legal and practical implications for discovery. The firm still
suggests to reporters and others, however, as it has all along,
that the supreme court had changed the discovery rules on it
in the middle of the game. The state bar gives a similar
rationale for its decision to do nothing about the case.
So Fisons has already paid out more than $10 million-$6.9
million to the Pollocks, $1.5 million to Dr. Klicpera, its share
of the $325,000 in discovery abuse sanctions to his insurance
company, and fees rumored to exceed $2 million to Bogle &
Gates and Helsell-for its handling of a lawsuit that Fisons
could have settled for $1.5 million (according to lawyers close
to the case), had it conducted a responsible defense from the
start.
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Hardball litigation-for which Bogle & Gates is known in the
Seattle legal community-doesn’t always pay. But often it does.
As the doctor’s lawyer, Saltzburg, says of Fisons and Bogle &
Gates: “They almost got away with it.” And they would have if
not for the anonymous whistle-blower who mailed the first
Grigg memo to Cunningham.
And even though they didn’t get away with it this time, the
sanctions award apparently forced Bogle to disgorge only a
small fraction of its fees from Fisons. Michelson and
Baumgardner are still in good standing at the firm.
A LEGAL CULTURE OF DECEIT
It would be easy to dismiss this sad story as simply one
episode of rogue lawyering by a single big law firm and its
client. But it’s more than that, judging by the parade of leading
lights that stepped up to defend Bogle. In the view of Bogle’s
14 distinguished litigation experts (and of Judge French), the
kind of ducking and dodging that took place in this case is a
routine aspect of the discovery process, and is permitted and
(some say) even required by the rules of professional ethics.
Examples:
•Roy Moceri of Seattle’s Reed Mc-Clure, a leader in the state
bar association, swore: “Most of the bar of this state would be
subject to sanctions at one time or another” if Fisons and
Bogle were sanctionable for their “nonresponsive answer” to
Cunningham’s request for theophylline documents.
•David Boerner, a legal ethics professor at the University of
Puget Sound Law School, wrote: “The ‘practitioners’ see
discovery as a part of, not an exception to, the adversary
system…Tendentious, narrow, and literal positions with
regard to discovery are, in my opinion, both typical and
expected in the civil discovery process.”
•Jerry McNaul, head of the litigation department at Seattle’s
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Culp, Guterson & Grader, who often represents plaintiffs, said
that Fisons’s responses to discovery requests were “typical of
those that I routinely find defendants making in major
litigation.”
•Yale’s Geoffrey Hazard said that or the basis of his limited
review of the case “it would be unreasonable to expect Fisons
to review non-Somophyllin Oral Liquid files in responding to
[Cunningham’s] request [for theophylline documents],” and
that “I do not find evidence of discovery abuse or unethical
conduct by Fisons or its counsel.” Hazard added: “An award of
sanctions is reserved for clear abuses of the discovery process
where reasonable minds cannot differ on the issue. In
responding to discovery requests, the rules do not require the
responding party to be generous or to volunteer information
that may be helpful to the other side.”
CONDONING INJUSTICE
“What surprised me about the case,” say: Dr. Klicpera’s
lawyer, Joel Cunningham “is that they were able to get highly
respected lawyers to sign declarations saying the conduct was
all right….I saw people whom I highly respect say, ‘Hey we do
this all the time.’ I doubted myself; little bit through this. I
thought, ‘Well maybe I’m naive. Maybe I’ve been unfair to
these guys.’ But I would come back to thinking, ‘This just can’t
be the way of practice law, and if it is, it’s just totally wrong,
and it’s the reason we spend our lives in court arguing over
discovery.”
The conduct that these experts con done-after describing it in
highly euphemistic terms-is not just a lawyers’ game. It causes
real injustice, by denying essential evidence to wronged
parties like the Pollocks and Dr. Klicpera. The discovery
process, and indeed the legal process fail in their most basic
functions when they fail to unearth such highly relevant
documents, and thus allow the truth to be concealed, denied,
and perverted.
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“Both as a lawyer and a law teacher I had a special interest in
this case,” Stephen Saltzburg recalls. “As a law teacher, I was
almost sick to my stomach every time I thought about the
possibility that law schools would have to add to their skills
training programs courses in how to mislead judges and other
lawyers and how to make misleading statements rather than
true ones….
“I could not imagine having to criticize a student doing an
exercise for being can did, honest, and forthcoming, and to
demonstrate how to be misleading, false, and deceptive. Were
I to lose, I feared 1 would be required to do just such a
demonstration, at least if my students were going to be able to
fight for their clients the way other lawyers fought for theirs.”
It is no answer-or, at least, no defense of the system-to say,
with Bogle and its experts, that the process failed here only
because the lawyers for Dr. Klicpera and the Pollocks did not
do their jobs.
Assume, for the sake of argument, the validity of Bogle’s claim
that Joel Cunningham, Paul Luvera, and their colleagues
should have framed their discovery requests more artfully, or
should have sensed that Fisons was hiding something behind
its sly ambiguities. (In fact, most of their key discovery
requests were simple, precise, lucid, and narrowly tailored.)
So what? Why should we tolerate a discovery system that
works well only when the lawyers invoking it display
uncommon brilliance in framing just the right questions,
uncommon cynicism about their adversaries’ candor, and an
uncommon willingness to go to court to remove any possible
ambiguity in an adversary’s response?
“Their contention, as far as I can gather, is that I was naive or
lazy,” says Joel Cunningham, “and if that’s true, I claim the
right to be naive, if that means you expect people to tell the
truth.”
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In fact, Fisons-Bogle counsel William Helsell described
Cunningham as “a rising star in our profession” in his January
1991 argument. Helsell also called the plaintiffs attorneys “as
good lawyers as we have in western Washington.”
So, by Helsell’s account, this was a case in which both sides
had first-rate lawyers; in which massive discovery proceeded
over more than three years; and in which the corporate
defendant nonetheless would have managed to keep the
smoking gun documents hidden forever but for the random
act of a whistle-blower. How could that be? Helsell’s
explanation, and that of Bogle’s other experts, is that some of
the best lawyers in the state somehow “didn’t do their
homework.”
Something is very wrong when even first-rate lawyers cannot
contrive discovery requests exquisite enough to prompt their
adversaries to cough up highly relevant documents that the
defense lawyers have in hand. This is the central lesson of the
Fisons case, regardless of whether you blame the system’s
failure on unethical (but apparently commonplace) conduct by
one side or on insufficient vigilance by the other side.
There is also something egregiously wasteful about a system in
which lawyers seeking discovery must assume, if they want to
protect their clients, that their adversaries will resort to
evasion, obfuscation, cleverly concocted ambiguities, and
other trickery to avoid disclosing damaging documents. For if
that is the assumption, those seeking discovery must do what
Bogle’s experts say Joel Cunningham should have done: take
deposition after deposition, serve interrogatory after
interrogatory, and file motion after motion, in a costly war of
attrition to smoke out evidence that should be obtainable
through a few straightforward questions to opposing counsel.
Finally, it is perverse for the legal system to create such strong
incentives to come up with rationalizations for hiding
evidence.
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FIXING THE SYSTEM
The root cause of discovery abuse, and of the waste that it
entails, is the persistence of raw adversary principles and
instincts in the context of a discovery system in which lawyers
are supposed to exchange all relevant, nonprivileged
information in “a spirit of cooperation and forthrightness,” in
the words of Chief Justice Andersen. And the solution is to
reform the discovery process by making crystal clear the
obligations of litigants and counsel to hand over the most
relevant information to their opponent: without playing
endless games over whether just the right question has beer
asked.
A modest step down this road has now been taken by the
federal judiciary, with the adoption (effective last December 1)
of discovery reforms including a requirement (at the option of
the various U. S district courts) that parties identify or
produce clearly relevant documents (and certain other
information) to one another a the outset of a case.
Yet these new federal discovery rule: have inspired such a
remarkable storm of opposition, from such a broad array of
litigators-the plaintiffs trial bar, the corporate defense bar,
and a raft of other groups-that Congress almost vetoed them
before they took effect, and might still, conceivably, repeal
them.
What explains the breadth of this opposition? Self-interest, for
one thing: The waste associated with discovery as we know it
is measured in billable hours, and any reform that cuts down
on such waste will cost law firms a pile of money.
Money aside, many lawyers sincerely believe that the
mandatory disclosure rule would put them at cross-purposes
with their clients-for example, by forcing them to volunteer
damaging evidence even if it is relevant only under theories o
liability that might never have occurred to opposing counsel.
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They also fear that turn-it-all-over obligation would deter
lawyers from asking probing questions of their clients for fear
of finding skeleton in closets that they would then be obliged
to throw open to their adversaries.
Perhaps so. But what would be so bad about that? Why
shouldn’t we put lawyers at cross-purposes with clients who
are seeking to conceal relevant evidence? Note that here we’re
talking about corporate clients seeking to avoid civil liability,
not about individual criminal defendants squirming in the
grip of the state. The rules should be designed to achieve
higher purposes than ensuring the wealth and comfort of
lawyers by helping them facilitate fraud.
And why shouldn’t we require litigants to bring relevant
evidence to light regardless of which side it helps? Sure, this
might reduce the advantages that skilled, diligent lawyers have
over sloppy, lazy lawyers. But litigation rules should be aimed
at awarding victory to the party with the best case, not the one
with the best lawyer.
The glory of the adversary system has been its power to
illuminate the truth by harnessing the skills of zealous
advocates for opposing parties to dig out relevant facts and to
clarify which inferences judges and juries can reasonably
derive from a full factual record. The shame of the adversary
system has been its degeneration into a pretext for lawyers to
hide facts, so as to pervert the truth. It’s time for those who
care about the system to make it clear that the duty of zealous
advocacy neither requires nor permits lawyers to be cover-up
artists.
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Model Answer and Structure for Assignment One
This is a traditional IRAC analysis. Please do not restate all the facts in the Issue. It is
not necessary to tell me the facts. Focus on identifying and articulating the legal
question. Try to keep the issue or issues concise and to the point. This case involves a
preliminary issue of court power. There is no need to dive into the substance which we
have not even learned at this point. The question here is whether the case can even
stay in this particular court and move forward.
Issue: Does the Federal Court in Maryland have jurisdiction over the defendant,
Allegro.
Rule: Jurisdiction is the power of the court to hear and decide the dispute brought to it.
To have jurisdiction, the court must have both subject matter jurisdiction over the case
and personal jurisdiction over the defendant.
For a federal court to have subject matter jurisdiction, the case must involve federal
law (federal question jurisdiction) or be between parties from different states with claims
that amount to more than $75,000 in damages (diversity jurisdiction).
For a court to have personal jurisdiction over an out of state defendant, there must be
minimum contacts between the defendant and the state where the court sits. Minimum
contacts can be measured by purposeful availment, meaning behavior that was directed
to the state for purposes of a benefit to the defendant, or by the effects test, involving
tortious behavior committed by the defendant which harmed the plaintiff.
Application:
In this case, the Federal District Court in Maryland has subject matter jurisdiction
because the case is between parties from two different states. This is diversity
jurisdiction. We can assume that Tarte has at least a good faith claim to over $75,000
in damages because we are told she has been out of work and very ill for some time.
The Court also has personal jurisdiction over Allegro in Washington state because
Allegro has minimum contacts with Maryland. It has used the Internet to sell its products
and has at least one customer, Tarte, in Maryland. Allegro purposefully availed itself by
seeking customers in Maryland. Under the sliding scale test, Allegro has an active
website and uses it to do business. Thus, they have minimum contacts with Maryland,
and it is fair that Allegro should go to Maryland to defend itself.
Conclusion:
The Court has jurisdiction. Motion to dismiss denied.
Student Sample:
Issue: Would the court dismiss the action based on lack of jurisdiction.
Rule: Jurisdiction is established by subject matter and personal jurisdiction. There are two situations
when the Federal courts have subject matter jurisdiction, first, when a federal question is involved and
second when there is diversity of citizenship. Diversity of Citizenship requires both, the plaintiff and
defendant must be residents of different states, and the dollar amount in controversy must exceed
$75,000.00. Personal jurisdiction is exercised over any person or business that resides in a certain
geographic area. When the activities take place outside of the geographic area of the defendant, a court
can exercise personal jurisdiction using the long arm statutes. Prior to the court invoking this statute, it
must demonstrate that the defendant had sufficient contacts or minimum contacts. Jurisdiction in
cyberspace, the courts have developed a “sliding scale” standard to determine when they can exercise
personal jurisdiction over an out-of-state defendant based on the defendant’s web activities. There are
three standards and rules for jurisdiction in cyberspace. First, when the defendant conducts substantial
business over the internet (such as contracts and sales). Second, when there is some interactivity through a
website, jurisdiction may be proper, depending on the circumstances. Even a single contact can satisfy the
minimum-contacts requirement in certain situation. Third, when a defendant merely engages in passive
advertising on the web, jurisdiction is never proper. An internet communication is typically considered
passive if people have to voluntarily access it to read the message and active if it is sent to specific
individuals.
Application: For subject matter jurisdiction does not apply because the lawsuit does not involve a federal
question. In the rule of Diversity of Citizenship, although the claim of damages is not stated, the plaintiff
will need to prove they are on short-term disability leave for the foreseeable future, and the damages
inflicted to the plaintiff will exceed $75,000. In addition, both the plaintiff and the defendant reside in two
different states, Maryland and Seattle. Personal jurisdiction, although the defendant sells products in 42
states, the plaintiff will need to demonstrate the defendant had sufficient contacts, or minimum contacts
for the court to evoke the Long Arm Statue. Jurisdiction in cyberspace, the internet is Allegro’s primary
distribution channel, and the defendant will need to provide sufficient evidence that their volume of
business over the internet isn’t substantial enough to meet the sliding scale standard. The plaintiff argues
that the jurisdiction is proper, because the interactivity through the defendant’s website and a single
contact can satisfy the minimum-contacts requirement in this situation/case.
Conclusion: Because there is sufficient evidence to invoke both personal and cyberspace jurisdiction,
The defendant, Allegro request to the court to dismiss the action based on lack of jurisdiction is rejected.
