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Arnold & Porter 'slipped' discovery documents into database without notice, referee says

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Arnold & Porter Kaye Scholer “slipped” discovery documents into a federal multidistrict litigation database without notifying plaintiffs in a New York state opioid trial, according to a court referee who recommended monetary sanctions.

Referee Joseph J. Maltese said the state plaintiffs had access to the database, but Arnold & Porter may have hoped that their lawyers were too preoccupied to notice them. As a result, Arnold & Porter was “deficient in not timely disclosing” the documents, which consisted of call notes by Endo Pharmaceuticals sales representatives, Maltese said.

Law360, Reuters and have coverage of Maltese’s report and recommendations, filed Oct. 15.

Arnold & Porter represented Endo Pharmaceuticals in the lawsuit by the New York attorney general’s office and Nassau and Suffolk counties in New York. The suit sought to hold drugmakers and distributors responsible for the opioid epidemic. Endo settled the suit for $50 million in September, after Maltese was appointed, without admitting wrongdoing.

Arnold & Porter lawyers said the sales representatives’ call notes were originally part of federal government investigation involving a non-opiate drug called Lidoderm. The notes were stored in an off-site storage facility. When Arnold & Porter became aware in May that the Lidoderm documents may contain notes that were opioid-related, they were turned over to Endo’s discovery counsel and added to the multidistrict litigation database.

That wasn’t enough, Maltese said.

“Placing those documents in the federal MDL document database, while accessible to the plaintiffs’ counsel, did not give them or the court timely notice of their existence for possible use in this trial,” Maltese wrote. “Therefore, [Arnold & Porter] was deficient in not timely disclosing those documents. Consequently, all of the plaintiffs were prejudiced by this delay, and accordingly, the court should fashion an equitable remedy for this failure to timely disclose those documents.”

Maltese said Arnold & Porter knew or should have known that the call notes involved opioid marketing because of a 2020 Tennessee case alleging discovery violations.

Maltese recommended that a judge award costs, including attorney fees, to the plaintiffs in connection with motions related to the discovery issue. He also said it was in the court’s discretion to award monetary sanctions against Arnold & Porter.

Maltese recommended against barring Arnold & Porter from representing Endo, against barring a particular partner from representing Endo, and against referring the partner for discipline.

Arnold & Porter gave this statement to Reuters: “While we do not agree with all of the statements made in this report, we are gratified that the referee rejected the vast majority of plaintiffs’ unfounded allegations and attacks on the integrity of our firm.”

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