Full “Early Discovery” to Begin in MDL 1938 — the ENHANCE-Related Securities Fraud, and RICO Counts, Putative Class Action: Polk

At a judicial status conference, held in open court on November 14, 2008, and now reported into the electronic case records of the PACER system last night, Judge Cavanaugh has apparently ruled in favor of the plaintiffs here, on four of five major points — and deferred to a later date the fifth point: a statute of limitations tolling issue, not yet fully-in-play. He’ll decide that one later, unless subsequent developments moot the issue (make it irrelevant, from a legal point of view).

A new MDL order is proposed to be entered, shortly, reflecting all these developments — and it would beat back almost all of the dubious suggestions (along the lines I had earlier detailed) offered by Schering’s trial counsel. In essence, 20 days from when the order is signed, Schering and Merck will begin turning over each of their file cabinets on ENHANCE matters, company-wide, for discovery. That alone — so called “early discovery” — is a huge victory. From an earlier letter on these subjects:

Of nearly equal importance, Judge Cavanaugh has not bought the argument that every plaintiff in every action must be subject to discovery — this, usually being a clever tactical move, to thwart the otherwise efficient class action pre-trial discovery process, and tip the playing field in favor of corporate defendants. Typically, then, the corporate defendant will run background checks on all the thousands of plaintiffs in each case, and possibly bounce the entire class for any shenanigans a few may have undertaken. But Judge Cavanaugh is having none of that cream-puff canard.

This ruling will allow the plaintiffs to concurrently explore several theories of recovery, without hampering their rights — as to any other avenues, in the near term. This is the way multi-district litigation coordination was actually originally-envisioned. Meritorious claims will rise naturally, to the top. No more piece-meal discovery; no more inconsistent rulings — and if a corporate defendant is “truly, completely in the clear” — it may quickly demonstrate that fact, from its treasure-trove of exonerating documentary evidence. Um. Don’t. Hold. Your. Breath. Here.

Do trust me on this — there’ll likely be little-to-none of that, here — as to Schering, and the individual defendants — Mr. Hassan, et al. Here is a graphic-image of the salient page — click to enlarge:


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