Asbestos MDL: Plaintiffs Will be Prejudiced Without Scientific Data
Would it be fair for a defendant to use scientific studies as a sword in litigation, but then wield a shield of privilege to prevent disclosure of the underlying scientific and electronic data used in those studies? In a recent order in the case, In re New York City Asbestos Litigation, 2013 NY Slip Op 04127(June 6, 2013), the Supreme Court, Appellate Division said no.
This discovery dispute concerned a Special Master’s recommendation to order the defendant, Georgia-Pacific (“GP”), to produce to plaintiff trial attorneys the underlying data regarding eight published studies funded by the defendant concerning the health effects of its products. The recommendation directed GP to produce microscopy images, data generated and numerical calculations, among other things.
The defendants attempted to dispute this recommendation by claiming the data was protected from disclosure, as it was privileged due to attorney-work product. The court was not buying that argument. Citing the relevancy of the data, “…it cannot be seriously disputed that plaintiffs have a substantial need for the underlying data in the preparation of their cases.” Although GP commissioned the studies in anticipation of litigation, that fact did not mean the studies or underlying data was protected by attorney-work privilege.
“Plaintiffs will be prejudiced if they are prevented from discovering the data, protocols, process, conduct, discussion, and analysis underlying these studies.” The court recognized the intrinsic unfairness of using these studies against plaintiffs if they did not disclose the underlying raw data. Plaintiffs and their own scientific experts should have the opportunity to review and scrutinize the data to argue against the studies’ conclusions. Noting that the ruling only applied to studies that have already been published or will be published, the court denied the defendant’s appeal of the court order that adopted the Special Master’s recommendation.