Duane Morris Class Action Review - 2023 - Report - Page 273
readily accessible to the defendant, it was not burdensome to produce as the defendant
is an insurance company and would have it on hand, the information was important for
the issues at stake in the class action, and the amount-in-controversy was satisfied.
Therefore, to the extent that the discovery could be produced that was not privileged,
the court reasoned that it should be produced. Regarding private information of the
class members, like names and contact information, the court ordered that the
defendant must produce that information. Id. at 19. The court opined there was a
stipulated protective order in place and this would serve to protect the potential class
member’s information. Id. Further, the potential class members likely would be aligned
in their interests with the plaintiff and would not oppose this information being released.
Id. The court also allowed for the plaintiff to seek policyholder information beyond 2013,
the date her policy was issued. Id. at *23. Ultimately, after weighing both parties’ case
law, the court found the discovery was warranted and it granted the plaintiff’s motion to
compel.
The Sixth Circuit also issued two important opinions in the opiate multidistrict litigation,
holding it is improper for parties to challenge interlocutory discovery orders through a
writ of mandamus due to Article III standing and the collateral order doctrine. In In Re
National Prescription Opiate Litigation, 2022 U.S. App. LEXIS 34312 (6th Cir. Dec. 13,
2022), and Walker County, et al. v. Optumrx, Inc. (In Re National Prescription Opiate
Litigation), 2022 U.S. App. LEXIS 34311 (6th Cir. Dec. 13, 2022). In the National
Prescription Opiate Multidistrict Litigation, Case No. 17-MD-2804 (N.D. Ohio May 27,
2022), the district court entered a Common Benefit Order (CBO). The CBO allowed
respondents in respective state courts for opiate litigation matters to notify the plaintiffs
that their discovery being sought may already be in the MDL repository. As part of the
CBO, petitioners are mandated to contribute to a common benefit fund, totaling 7.5% of
the gross recovery in these cases, unless a different percentage is negotiated by the
parties and approved by the district court. After the COB was entered, two separate writ
of mandamus were filed from two sets of petitioners who represented seven hundred
petitioners over nine states. In both matters the petitioners argued that the district court
did not have jurisdiction over the various state court opiate cases. The Sixth Circuit
denied the writ of mandamus from the Harris County petitioners, holding that the
petitioners did not have standing to challenge the COB and that a writ of mandamus
was not appropriate for review of the COB. In its analysis of standing, the Sixth Circuit
noted that petitioners were not harmed by the COB because it was just a mechanism for
respondents to provide discovery. In Re Nattional Prescription Opiate Litigation, 2022
U.S. App. LEXIS 34312, at *3. Further, the Sixth Circuit reasoned that even if there was
standing, the district court had not finalized a fee award and therefore the petitioners’
injuries were “neither concrete nor imminent” which were necessary for standing. Id. If
the parties wished to appeal the CBO fee award they could appeal the fee award after
they had complied. Id. at *19. The Sixth Circuit also clarified that a writ of mandamus
was not appropriate to challenge the COB as it was limited to only be used in
“exceptional situations.” Id. at *20. Instead a direct appeal was the appropriate means to
seek relief and address their due process claims. Id. The Sixth Circuit’s sentiments were
reaffirmed in its opinion for the appeal led by the Walker County, Texas petitioners.
Walker County, 2022 U.S. App. LEXIS 34311, at *1. In that opinion, it held that the COB
was not appealable under the collateral order doctrine. Id. at *8. The petitioners argued
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Duane Morris Class Action Review – 2023
