Johnson & Johnson and its DePuy unit were ordered by a Texas federal jury on Thursday to pay about $500 million to five plaintiffs who said they were injured by Pinnacle metal-on-metal hip implants, Reuters reports.

Jurors deliberated for a week before finding that the Pinnacle hips were defectively designed, and that the companies failed to warn the public about their risks. The verdict at the conclusion of the two-month trial called for about $140 million in total compensatory damages and about $360 million in punitive damages.

A J&J spokeswoman said the company will appeal.

Mark Lanier of The Mark Lanier Law Firm, with offices in Houston, New York and Los Angeles, was lead trial counsel for the plaintiffs.

Read the article.

“Sometimes, accidents just happen,” a lawyer for General Motors Co. told a U.S. jury in defense of the carmaker at a test trial over a deadly flaw in millions of ignition switches, according to a BloombergBusiness report.

The accident involving a collision on a New Orleans bridge during a January 2014 ice storm is at the center of a case that could affect the outcome of hundreds of other GM ignition switch cases.

“The trial is the second of six bellwether cases, so called because they are used to test strategies,” Bloomberg reports. “The jury’s reaction to the evidence may push either side to settle — or battle out — hundreds of other cases and help set the size of any settlements.”

Read the article.

The hardest won rights are often the easiest to lose, and in the thickets of fine print surrounding every labor contract or credit card bill, all it takes is one careless signature to get roped into a deal with the devil — before you know it, you’ve already compromised your right to a fair trial or to speak out against an abusive boss, writes Michell Chen in The Nation.

“Despite American society’s reputation for litigiousness, there are as many things to sue over as there are ways to escape a lawsuit. In February, a coalition of lawmakers led by Senators Patrick Leahy and Al Franken introduced legislation to strengthen worker and consumer protections against binding arbitration — the obscure legal mechanism through which countless people have accidentally compromised their rights, by ensuring that a prospective future dispute with a company gets tracked into a separate legal system rigged with corporate impunity,” she writes.

In her article, Chen says the measure aims to shield access to the courts for workers and consumers by preventing corporations from trying to impose arbitration before any dispute even arises.

Read the article.

Photo by Mingle Media TV

Sportscaster Erin Andrews has triumphed in a Nashville courtroom and then ignited social media by winning a $55 million judgment against the stalker who filmed her nude and the hotel where the incident occurred, but her spectacular seeming victory will certainly turn into a far smaller payout, predicts The Hollywood Reporter.

“Her stalker, Michael Barrett, is on the hook for $28 million of that judgment, but Andrews will never see that money. ‘They can garnish his wages, but there’s essentially nothing to collect,’ says Rick Sanders, a litigator based in Nashville and a partner at Aaron & Sanders. ‘He’s a perfect example of a judgment-proof defendant,'” the report says.

The Nashville Marriott and the company that operates the hotel were held responsible for almost $27 million, but it’s unlikely that the plaintiff will collect that amount either.

Read the story.

Soft-spoken and bookish litigator Elizabeth Cabraser stood out from the cloud of alpha lawyers when made her low-key pitch to a federal judge as to why she should be selected to lead a massive consumer-fraud case against Volkswagen AG, reports The Wall Street Journal, via NASDAQ.

Her eloquence and focus on the clients contrasted with dozens of others who pitched the judge that day, bragging about their most recent newspaper awards, school credentials and trial prowess, the report says.

“U.S. District Judge Charles Breyer hours later named Ms. Cabraser to lead a team of 21 lawyers handling the plaintiffs’ cases, which consolidate more than 500 lawsuits. Volkswagen has admitted its diesel cars were installed with software meant to trick emissions tests and is working with regulators on a fix,” according to the report.

“The San Francisco Bay Area native has built a reputation for her encyclopedic knowledge of class-action law, effectiveness in oral arguments, and ability to diplomatically manage large cases, lawyers say.”

Read the story.

The statute of limitations on an unsuccessful job applicant’s Fair Credit Reporting Act claim began to run when he discovered that his credit report had been pulled, not when he learned that the employer’s action was an FCRA violation, according to the U.S. Court of Appeals for the Sixth Circuit.

Richard A. Roth wrote in Wolters Kluwer‘s Law & Business website that the general rule is that a statute of limitations begins to run when the facts giving rise to a claim are discovered, and the FCRA adheres to that general rule. The case is Rocheleau v. Elder Living Construction, LLC, Feb. 18, 2016, Siler, E.

“The job applicant asserted that the two-year limit began to run not when he discovered that the background report had been ordered but rather when he discovered that doing so was an FCRA violation,” Roth explained. But the appellate court disagreed.

Read the article.

Businesspeople spend a lot of time and take a lot of pride negotiating deals, points out lawyer and author Jack Garson in the Huffington Post.

“They high-five when they get key points. But understand what it takes to win if there is a fight later. You only win a ‘feel-good’ battle in the negotiation. You win the real war in the contract. That’s where the killer contract clauses rule,” he writes.

He provides examples of contract language  that can make a contract much more favorable. “Contracts and the law are not about common sense. They’re about rules. Know them and win. Ignore them and forget about retiring on time.”

Read the article.

Two high-profile Texas attorneys were sued by a fishing boat captain who said they were involved in a scam to cheat BP Plc out of millions of dollars with false compensation claims for the Gulf of Mexico oil spill, reports Bloomberg.

Houston lawyer Tammy Tran said in a complaint Thursday that thousands of Vietnamese-American fishermen and women had their identities faked or stolen in the fraud, bankrolled by lawyers Bob Hilliard and John Cracken. Plaintiffs blame the lawyers in part for obstructing their efforts to pursue their own claims for payments under BP’s restitution program, the report says.

“Tran is seeking more than $100 million in punitive damages from Hilliard and Cracken to compensate the immigrants,” according to Bloomberg. “Many of them claim to have suffered mental anguish from “nightmarish memories” of Vietnam’s communist regime, revived by federal agents knocking on doors to investigate the identity thefts. Compensation is also sought for homes and businesses lost while waiting for BP to pay under its seafood accord.”

Hilliard denied the allegations.

Read the story.

Samantha Green, Esq.
Adam Bottner, Esq.
DTI

As we move into 2016, many of us will be trying to keep the New Year’s resolutions that we made. Eat less carbs, read more, be more organized, call your parents more often, cooperate with your adversaries, etc…

Hold on, “cooperate with your adversaries”? Why would anyone ever want to do that? Well, if you’re a litigator, you may need to make this one of your resolutions for 2016. In the amendments to the Federal Rules of Civil Procedure that took effect on December 1, 2015 and apply to federal cases filed after that date, there is an acknowledgement of the role of cooperation amongst parties. That being said, several questions come to mind, with the primary thought, how far does a party need to go to be deemed cooperative?

“Cooperation”, according to Webster’s, is defined as “the process of working together to the same end”. “Adversary”, by definition, is “one’s opponent in a contest, conflict, or dispute”. So how do two adversaries cooperate? Putting these terms together is oxymoronic, kind of like jumbo shrimp. However, in order to advance the goals of the Federal Rules of Civil Procedure[1], as amended (“They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action”), adversarial cooperation is now the standard that the judicial system is demanding. So in terms of the discovery process, how can you be a cooperative attorney without being a[n] (oxy)moron?

Cooperation is not a new concept within the framework of the FRCP. When the first uniform civil procedure rules allowing discovery were adopted in the late 1930’s, “discovery” was understood as an essentially cooperative, rule-based, party-driven process, designed to exchange relevant information. The goal was to avoid gamesmanship and surprise at trial.[2] Disciplinary Rule 7-101 of the ABA Model Rules (“Representing a Client Zealously”) states that “…a lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which do not prejudice the rights of his client.” The overriding theme of the recent amendments to the discovery rules has been to open sharing of information by all parties to a case with the aim of expediting case progress, minimizing burden and expense, and removing contentiousness as much as practicable.[3] If counsel fail in this responsibility—willfully or not—these principles of an open discovery process are undermined, coextensively inhibiting the courts’ ability to objectively resolve their clients’ disputes and the credibility of its resolution.”[4]

Although the concept of cooperation was heavily emphasized during the rule drafting sessions, the word “cooperation” was not specifically used in the amended Rule 1. The phrase “cooperate to achieve these ends” was seriously considered, but the drafters feared collateral consequences from this verbiage, such as fostering more disagreements amongst the parties and parties blaming each other when it would lend to their respective advantage. A similar attempt at adding this type of verbiage was rejected in 1978 for the same reasons.

This time, the drafters did include a Committee Note to Rule 1 that states that “the parties share the responsibility to employ the rules” in that matter, i.e. to secure the just, speedy, and inexpensive determination of every action.[5] The Note further states that “most lawyers and parties cooperate to achieve those ends” and that it is important to discourage “over-use, misuse, and abuse of procedural tools that increase cost and result in delay.”[6] However, by declining to use the word “cooperation”, there is little guidance on where strategy and cooperation merge.

Now that we know we have to “cooperate”, the question remains of how to do so, especially with little to no guidance on what “cooperation” means. Speaking of New Year’s resolutions, many litigators resolved in 2015 to use predictive coding more in 2016 (seriously). More and more courts have stamped predictive coding as an acceptable method to cull and review data, and the judicial system has recognized the benefits predictive coding has over linear review. However, predictive coding is changing the paradigm of cooperation and work product. With the increased use of predictive coding, it seems there will be more questions about how much cooperation is enough. For example, non-responsive documents, considered work product before predictive coding, are now being requested by opposing counsel under the guise of cooperation and transparency. Does the use of predictive coding now change the definition of “work product”? With the courts strongly urging attorneys to cooperate with opposing counsel in order to streamline the discovery process, what exactly does that mean for counsel? How much information needs to be shared about the technology used or the search methodology employed in order to save costs, while still protecting counsel’s legal strategy? Can sanctions be handed down for lack of cooperation in this context?

The new federal rules do not address these questions. The drafters of the amendments to the federal rules, when discussing cooperation, took their cue from The Sedona Conference, a well-respected eDiscovery think tank frequently cited by the courts, which authored “The Cooperation Proclamation”, which does speak to predictive coding. The proclamation discusses cooperation broadly and, with regard to predictive coding, it states:

“Th[is] proclamation generally encourages that parties “reach agreement on automated search methodology…[to] locate and produce the most relevant ESI”, including keeping records and comparing results while testing different search methods in an effort to agree on the most suitable methods.”

The Seventh Circuit Electronic Discovery Pilot Program, which was formed to consider what can be done to reduce the costs of electronic discovery, and the costs of discovery and litigation more generally, also speaks to cooperation.[7] Principle 1.02 of the program states, “An attorney’s zealous representation of a client is not compromised by conducting discovery in a cooperative manner” and further “the failure of counsel or the parties to litigation to cooperation facilitating and reasonably limiting discovery requests and responses raises litigation costs and contributes to the risk of sanctions.”[8]

The courts have begun to address the issue of cooperation within the predictive coding paradigm, but with mixed results. In the Biomet case[9] the Defendant employed keyword searching and predictive coding to cull the 19.5 million documents that were originally collected. The Plaintiffs asked the Defendant to identify the entire seed set used to train the algorithm so that it could better suggest additional keyword terms. The Defendant refused to identify the seed set, representing only that all discoverable documents used to train the algorithm had already been disclosed. The Court decided that irrelevant documents used to train the system are not discoverable and the Defendant is not required to disclose these documents. However, the Court found Defendant’s refusal to cooperate troubling and urged Defendant to rethink its refusal.

Most litigators do not want to turn over non-relevant documents, but they also do not want to run afoul of the court. So, the Biomet decision creates a conundrum for counsel—it seems to be saying that the party using predictive coding does not need to turn over non-responsive documents used to train the system, but that party will then be looked upon as being uncooperative.

In Progressive Cas. Ins. Co v. Delaney, the parties “cooperatively” came together and jointly stipulated to an ESI protocol where predictive coding was not mentioned[10]. After signing the stipulation, the Plaintiff collected 1.8 million documents and applied search terms, but it only reduced the potentially responsive population to 565,000 documents. After the start of review, Plaintiff’s counsel found manual review to be too time consuming and costly so it engaged in predictive coding without consulting the Court or the Defendant. The Court said that where there has been no cooperation and little transparency in drafting a predictive coding methodology, it is reluctant to deviate from the protocol already negotiated and agreed upon. The Court required the Plaintiff to produce all 565,000 documents without review, with a clawback provision for produced privileged documents and permitted the Plaintiff to apply privilege filters to identify and withhold documents most likely to be privileged.

So, courts seem to be accepting of the use of predictive coding, especially when the parties jointly agree to an ESI protocol beforehand. However, as the Progressive case warns, one party’s unilateral deviation from the agreed upon protocol may be perceived as uncooperative. Best practice would be to always get agreement before proceeding with predictive coding.

An interesting twist to the question of cooperation in the use of predictive coding came in the Kleen Products case[11].  The Defendants used a Boolean search method, iteratively testing and refining search terms to be used, using sampling to measure the results, and validating to ensure accuracy. Almost a year after discovery began, Plaintiffs criticized specific details of Defendants’ methodologies, further arguing that “key word searching” is inherently inadequate, outdated, and flawed. Plaintiffs asked the district court to require the use predictive coding (“content-based advanced analytics”), which would have essentially required Defendants to completely start over. Emphasizing Sedona Principle 6[12], the court urged the parties to work cooperatively to consider whether the Defendants’ search methodology might be refined to satisfy Plaintiffs without disregarding all of Defendant’s work. The parties continued to meet-and-confer and, almost five months after the hearings, they reached an agreement regarding search methodology for the first phase of discovery.

So, as litigators, let’s all follow through on our common resolution for 2016 to make a sincere effort to cooperate in discovery with our opposing counsel (for those of you who did not make such a resolution, you may want to get on that). What “cooperation” means specifically in the predictive coding context has not been answered conclusively, but transparency should be paramount (as long as it doesn’t compromise strategy). While we’re at it, let’s all follow through on our resolutions to eat less carbs, read more, be more organized, and call our parents more often.

About the Authors

Samantha Green is an eDiscovery consultant for DTI. She has advised, written and spoken on all phases of the electronically stored information (ESI) life cycle. She has worked on many government investigations, second requests and litigation crossing all spectrums. Prior to DTI, Samantha was eDiscovery Attorney for Blank Rome LLP.

Adam Bottner is an attorney and director of business development for DTI. Bottner works with clients to scope and implement workflow solutions for a wide range of eDiscovery projects, including SEC and DOJ investigations and complex civil litigation matters. Bottner is a frequent author and speaker at continuing legal education programs, including programs relating to eDiscovery management and litigation readiness. Bottner chairs the Chicago Bar Association’s Cyber Law & Data Privacy Committee and is also an adjunct professor at IIT Chicago-Kent College of Law, where he is currently teaching an electronic discovery class- eDiscovery 495.

About DTI
DTI is a legal process outsourcing (LPO) company serving law firms and corporations around the globe.

[1] Federal Rules of Civil Procedure Rule 1.

[2] The Sedona Conference® Cooperation Proclamation at page 5.

[3] Board of Regents of University of Nebraska v BASF Corp. No. 4:04-CV-3356, 2007WL 3342423, at *5 (D. Neb. Nov. 5, 2007).

[4] Id.

[5] Attachment to Memorandum from John D. Bates, Sec’y, Judicial Conference of the U.S., to Hon. John G. Roberts, Chief Justice U.S. Supreme Court (Sept. 26, 2014).

[6] Id.

[7] Seventh Circuit Electronic Discovery Pilot Program, page 7.

[8] Principle 1.02 of the Seventh Circuit Electronic Discovery Pilot Program.

[9] In re: Biomet M2a Magnum Hip Implant Products Liability Litigation, 2013 WL 1729682 (N.D. Ind. Aug. 21, 2013).

[10] Progressive Cas. Ins. Co v. Delaney, 2014 WL 2112927 (D. Nev. May 20, 2014).

[11] Kleen Products LLC, et al. v. Packaging Corporation of America, et al., 2012 WL 4498465 (N.D. Illinois, Sept. 28, 2012).

[12] Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.

Zapproved Inc. has made available for download a new publication called The Word from the Top: New Rules Amendments are a “Big Deal.” This resource covers the latest opinions and trends in preservation case law.

“As we enter 2016, it marks the beginning of a new era in the federal civil judiciary with the implementation of the revisions to the Federal Rules of Civil Procedure on December 1, 2015,” the company says. “This was the culmination of a five-year process that showed unprecedented engagement from all parties in the civil justice system.”

Download to learn more about these most recent preservation cases:

• United States v. Vaughn
• Warren v. AmChem Prods
• West v. Talton
• Cook v. Tarbert Logging, Inc
• … and more

Download the resource.

The death of Supreme Court Justice Antonin Scalia has prompted Dow Chemical to settle a class action lawsuit and pay out $835 million, reports CNN.

“The case involved an allegation that Dow and other makers of a chemical known as urethane had conspired to fix prices between 1999 and 2004,” the report says. “Other defendants in the case settled with the plaintiffs but the case against Dow went to a jury trial.”

Dow was facing a $1.1 billion judgment in a price fixing case, and the company was appealing the verdict all the way to the Supreme Court. But now Dow Chemical says it no longer thinks it could win its appeal without Scalia on the bench.

Read the article.

Photo by Marc Nozell

A federal judge questioned the Obama administration’s “good faith” in helping keep former Secretary of State Hillary Clinton’s emails secret for six years and said he may end up issuing a subpoena to force her to turn over her entire account to the government, The Washington Times reports.

Judge Emmet G. Sullivan said he will grant limited discovery to Judicial Watch, a conservative legal group that has sued to get a look at Clinton’s emails.

“That could give the group — and the broader public — answers as to who approved Mrs. Clinton’s unique arrangement, who else in government knew about it and why they shielded it for so long,” the report says. “It also could force Mrs. Clinton to answer questions about how she sorted through her account and decided which messages she didn’t want to turn over to the government.”

Read the article.

A King County, Washington, judge has sanctioned two attorneys hired by Pierce County Prosecutor Mark Lindquist’s office, citing their “intentionally misleading conduct” during a long-running lawsuit, according to a report in the Tacoma News Tribune.

“The ruling Wednesday from Superior Court Judge Beth Andrus sanctions Seattle attorneys Richard Jolley and Stewart Estes,” the report says. “It orders them to pay $32,000 for withholding information from civil attorney Fred Diamondstone and conducting ‘misleading settlement negotiations’ that fell apart in December.”

The case involves false-arrest lawsuit filed by a former resident who was twice charged with sex crimes by Lindquist’s office.

“Those charges were dismissed initially in 2011 because of erroneous evidence: a picture wrongly identified as Dalsing. The charges were dismissed again by Pierce County Superior Court Judge Ed Murphy in 2015, due to a finding of prosecutorial vindictiveness,” the report says.

Read the article.

Volkswagen has been given until March 24 to present an acceptable fix for bringing nearly 600,000 diesel cars into compliance with clean air laws, reports DW Akademie.

U.S. District Judge Charles Breyer told the car maker at a court hearing in San Francisco on Thursday that he has a “sense of urgency” about seeing a resolution.

The company has already admitted to using software that covers up the fact that some of their cars emit up to 40 times legally allowable emissions in vehicles sold since 2009.

Read the article.

Some contracts, including insurance and reinsurance contracts, include provisions providing that the successful party’s damage award will include all costs of the suit or arbitration, including attorney fees, writes Larry P. Schiffer in Squire Patton Boggs’ Insurance and Reinsurance Law Blog.

“This type of clause modifies the traditional default American Rule of costs and fees, in which each litigant pays its own attorney fees, win or lose,” he explains. “What happens when this type of contract clause bumps up against the Federal Arbitration Act (‘FAA’) and the ability of a party to petition a court to seek to vacate an arbitration award? Is the prevailing party entitled to costs and attorney fees defending the vacatur proceeding?”

He describes a recent ruling in the 2nd U.S. Circuit Court of Appeals, in which the court was asked to review a district court order confirming an arbitration award and awarding costs and attorney fees to the prevailing party.

Read the article.

Zapproved Inc., a developer of cloud-based software for corporate legal departments, has announced a strong performance for 2015 that saw continued market adoption of Zapproved’s Legal Hold Pro. The company’s leading litigation hold management software currently oversees more than half a million employees on active litigation holds, said in a release.

The company’s release continues:

Zapproved saw strong adoption in 2015 among the Fortune 500, the largest U.S. companies based on revenue. Since the beginning of 2015 Zapproved reports a 42 percent increase in employees at Fortune 500s using Legal Hold Pro and now represents 16.7 percent of the total employee population of those enterprises.

“America’s largest corporations are faced with litigation and regulatory investigations constantly and we have provided them with a modern approach to take control of their litigation response,” said Monica Enand, CEO and Founder of Zapproved. “To think that one out of every six employees among Fortune 500s rely on our software for their legal hold needs shows that we have made great inroads in solving this pain point. We aren’t stopping there. Our newest products are bringing much needed innovation to corporate legal departments so they can take much greater control over their e-discovery process in order to lower risk and reduce exorbitant costs.”

Making Important E-Discovery Breakthroughs

Zapproved recently announced it had made a major technological advancement in electronic discovery by processing data at a rate exceeding one terabyte per hour using Digital Discovery Pro™. The impact for corporate legal teams is that they can process and review discovery data instantly for immediate insights to a case or internal investigation. Similarly, Zapproved introduced the first remote collection software for Mac computers and added the ability to collect from Microsoft Office365 OneDrive for Business.

“Zapproved’s ability to innovate and rapidly introduce new product features illustrates our approach to serving our customers,” added Enand. “We have hundreds of extremely loyal customer, illustrated by our negative revenue churn, who are helping guide our product roadmap so we are delivering exactly what they need, when they need it.”

About Zapproved Inc.
Founded in 2008 in Portland, Ore., Zapproved Inc. is a pioneer in developing cloud-based software for corporate legal departments. The Z-Discovery Platform returns power to in-house corporate legal teams and helps them navigate electronic discovery with minimal risk and cost, and it sets new standards for scalability and intuitive design. The company’s flagship product, Legal Hold Pro, is widely adopted by Fortune 500 and Global 2000 corporations and has earned recognition as the Best E-Discovery Legal Hold Product at the 2015 Legaltech News Innovation Awards, in the 2014 and 2015 Best of the National Law Journal and the 2013 and 2014 Best of Legal Times. Zapproved was recognized in the 2014 Inc. 500 as one of the fastest growing private companies in the U.S. and was named as a “vendor to watch” in the 2015 Gartner Magic Quadrant for E-Discovery.

Donald Trump has a habit of causing controversy, and his remarks on Ted Cruz‘s Presidential eligibility have been no exception, reports Matt Strong on LawNews.com. The Texas senator now faces several lawsuits across the country — in Illinois, Texas, New York and Utah — that are bringing the candidate unwelcome distractions.

“Since January 17, Trump has made inflammatory threats of litigation over Cruz’s Canadian-birth and the question of whether Cruz is a ‘natural born citizen’ five times,” the site reports.

And others have gone so as to frame their challenges as lawsuits. “Of the litany of filed suits, four in particular pass muster, either by creatively suing a state election board, scaring Cruz’s campaign into a response, or originating from lawyers in pursuit of more than political gamesmanship or political frivolity,” Strong wrote.

Read the article.

A $22 million lawsuit against Beaumont, Texas attorney Wayne Reaud, along with several others, have been dismissed. The plaintiff was an electrician who claimed the defendants committed acts that cost him a business contract with the Beaumont Independent School District, reports SETexasRecord.com.

The plaintiff, Calvin Gary Walker, proprietor of Walker’s Electric, had alleged that the defendants worked to end his professional relationship with BISD, insinuating the respondents wrongfully made light of his 2011 federal indictment for fraud. Walker’s claims against the Beaumont attorney and his newspaper were based on two articles published in The Examiner.

Reaud argued that defamation claims based on the articles were frivolous.

Read the article.

A survey report released today by public relations firm Greentarget demonstrates that while senior legal officers acknowledge the importance of communications with stakeholders during high-profile lawsuits, the majority have outdated strategies or no strategies at all to direct communications outside of court.

This lack of preparation leads to an overly conservative approach defined by decisions and actions that are often impulsive and governed by the fear of negative media attention. Ironically, these instincts can compound the likelihood of reputational damage.

This vicious cycle – an increasing number of high-profile lawsuits, deficient planning, conservative approaches, and the resulting potential negative attention – is exacerbated by the lack of accountability at most organizations, Greentarget writes in a release. The majority of respondents said that they are not ultimately responsible for communications strategy outside of court. They stated that other senior leaders in their organizations have final authority and that their CEOs were either actively involved throughout litigation or at least engaged major decisions.

The vast majority of the 73 survey respondents, about three-quarters of whom are in senior legal roles for organizations with at least $500 million in annual revenue, said they have contended with at least one high-profile lawsuit in the past year.

“Most lawyers and their clients can predict what lawsuits would be most damaging to their organizations, and they should take some level of control and prepare for what’s to come,” said Larry Larsen, senior vice president of Greentarget and head of the firm’s Crisis & Litigation Communications Group. “Companies that give forethought to potential legal situations will have more effective and timely responses. In today’s world of immediate and unending news coverage, premediated statements made at the onset of crises can save companies from substantial reputational harm and years of damage control.”

The Highlights

Relentless litigation: In the last 12 months, 82 percent of respondents have been involved in at least one high-profile litigation action.

Unprepared and unaccountable: 62 percent of respondents have no crisis team identified and no plans in place, or have plans in place that have not been updated since their creation. Furthermore, only 37 percent said they were ultimately responsible for litigation communications in high-profile situations.

The boss is watching: 86 percent of respondents felt the external communications surrounding a high-profile litigation were somewhat or very important to the organization. Sixty-one percent indicated that their CEO is either actively involved throughout the process, or at least actively involved in the major decisions during the case.

A fear of critical press: Respondents said concern about negative media coverage and media attention that might negatively affect cases were by far the greatest impediments to more aggressive communications.

The seemingly careful route: 58 percent of respondents agreed that their organizations tend to act more conservatively than necessary when communicating externally about litigation matters

“Through our work with the world’s leading law firms, we see every day how smart, deliberate communications can influence and support successful legal outcomes,” said Aaron Schoenherr, founding partner of Greentarget. “While an organization’s legal strategy should take the lead, much more can be done to get communications and legal working together more effectively. That’s an important conversation and one we’re uniquely positioned to lead.”

Read a summary of the report.

U.S. District Judge Sidney Fitzwater has entered a judgment of $9.6 million for medical products manufacturer ThermoTek Inc. after a jury found that a competitor fraudulently obtained the company’s business information for a series of physical therapy machines.

ThermoTek is the Flower Mound, Texas-based manufacturer of VascuTherm2, Vascutherm4 and other products that are used in the treatment of deep vein thrombosis (DVT) and other medical conditions.

In 2010, ThermoTek was sued by a distributor, which alleged faulty manufacture.

ThermoTek’s lawyers from the Dallas-based law firm Rose•Walker managed to move the case to Dallas, where Judge Fitzwater dismissed a number of the original claims. The attorneys then brought a counterclaim, alleging plaintiffs fraudulently obtained ThermoTek’s business information in order to design and sell their own products. During the litigation, some of the plaintiffs were sanctioned for failing to produce documents.

Read more details about the case.