WilliamsvBASF-AmicusBriefinSupportPlaintiffs-113011

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF NEW JERSEY

______________________________:

KIMBERLEE WILLIAMS, ET AL., : Civ. No. 11-cv-1754 (SRC) (MAS):

Plaintiffs, ::

vs. ::

BASF CATALYSTS, LLC, ET AL., ::

Defendants. :______________________________ :

____________________________________________________________

BRIEF OF AMICUS CURIAE PUBLIC JUSTICE, P.C. IN SUPPORTOF PLAINTIFFS ON ISSUE OF LITIGATION PRIVILEGE

____________________________________________________________

Esther E. Berezofsky, Esq.WILLIAMS CUKER BEREZOFSKY, LLCWoodland Falls Corporate Center210 Lake Drive East, Suite 101Cherry Hill, NJ 08002-1163Tel: 856-667-0500Fax: 856-667-5133Email: [email protected]

Counsel for Amicus Curiae Public Justice, P.C.

Additional Counsel on the Brief Listed on Signature Page

Case 2:11-cv-01754-SRC -MAS Document 97-2 Filed 11/30/11 Page 1 of 26 PageID: 3366

CORPORATE DISCLOSURE STATEMENT

The following information is provided pursuant to Fed. R. Civ. P. 7.1:

The amicus curiae is Public Justice, P.C. This organization does not have

any parent corporation and no public company owns ten percent (10%) or more of

any stock in it.

Public Justice, P.C. is not affiliated with and does not represent the interests

of any party in this case. The views and analysis provided in this motion and

proposed amicus curiae brief are our own and no party in this case has contributed

to or influenced those views in any way.

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TABLE OF CONTENTSPage

Corporate Disclosure Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Interest of Amicus Curiae. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Introduction and Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Statement Pertaining to Operative Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Legal Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I. The New Jersey Supreme Court’s Decisions Recognizing theLitigation Privilege Demonstrate Its Inapplicability to Acts ofConcealment and Destruction of Evidence Aimed at Derailing the Search for Truth.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

II. Decisions From Other Jurisdictions That Share New Jersey’s Concept of the Legitimate Objectives of Litigation Further Undercut Any Application of the Litigation Privilege Here.. . . . . . . 11

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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TABLE OF AUTHORITIESPage

Cases

Deatherage v. State Examining Bd. of Psychology,948 P.2d 828 (Wash. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17

Digiacomo v. Teamsters Pension Trust Fund of Phila. andVicinity, 420 F.3d 220 (3d Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . 6

FMC Technologies, Inc. v. Edwards, 464 F. Supp. 2d 1063(W.D. Wash. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Green Leaf Nursery v. E.I. DuPont de Nemours and Co.,341 F.3d 1292 (11th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 18

Hawkins v. Harris, 661 A.2d 284 (N.J. 1995). . . . . . . . . . . . . . . . . . . . . . passim

In re Vincenti, 458 A.2d 1268 (N.J. 1983). . . . . . . . . . . . . . . . . . . . . . . . . 6, 13

Loigman v. Township Committee of Twp. of Middletown,889 A.2d 426 (N.J. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 10

Living Designs, Inc. v. E.I. DuPont de Nemours and Co.,431 F.3d 353 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

Matsuura v. E.I. DuPont de Nemours and Co.,73 P.3d 687 (Haw. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Morton Bldgs., Inc. v. Rezultz, Inc., 603 A.2d 946 (N.J. 1992). . . . . . . . . . . . . 10

Simms v. Seaman, 23 A.3d 1 (Conn. App. Ct. 2011). . . . . . . . . . . . . . . . . . . . 18

Taylor v. McNichols, 243 P.3d 642 (Idaho 2010). . . . . . . . . . . . . . . . . . . . . . 19

Williams v. Kenney, 877 A.2d 277 (N.J. Super. Ct.App. Div. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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Statutes, Regulations, and Court Rules

Fed. R. Civ. P. 12(b)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Miscellaneous

Paul T. Hayden, Reconsidering the Litigator’s Absolute Privilegeto Defame, 54 Ohio St. L.J. 985 (Fall 1993). . . . . . . . . . . . . . . . . . . . . 19

Van V. Veeder, Absolute Immunity in Defamation:Judicial Proceedings, 9 Colum. L. Rev. 463 (1909). . . . . . . . . . . . . . . . . 9

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INTEREST OF AMICUS CURIAE1

Public Justice, P.C. (“Public Justice”) is a national public interest law firm

that specializes in precedent-setting and socially significant civil litigation and is

dedicated to obtaining justice for the victims of corporate and governmental abuse.

Public Justice prosecutes cases designed to advance consumers’ and victims’

rights, civil rights and civil liberties, occupational and environmental health,

employees’ rights, the preservation and improvement of the civil justice system,

and the protection of the poor and the powerless.

To further its goal of advancing access to justice for persons harmed by

corporate misconduct, Public Justice launched its Access to Justice Campaign to

expose, challenge, and defeat a wide range of practices used to deny such persons

their day in court. Through its Access to Justice Campaign, Public Justice has

challenged sweeping assertions of preemption doctrines, abuses of mandatory

arbitration clauses, contractual bans on class actions, abuses of the class action

device, attempts to impose secrecy on court proceedings, and assaults on the

Constitution, all of which are aimed at denying people the opportunity to vindicate

their rights by depriving them of a meaningful day in court.

This brief was not authored in whole or in part by counsel for any party. 1

No person other than amicus curiae and its counsel made a monetary contributiontowards the preparation or submission of this brief.

1


Although the instant case raises a host of access to justice issues, Public

Justice focuses on just one of these in this Brief of Amicus Curiae. Several of the

Defendants argue that Plaintiffs’ and putative class members’ claims alleging that

Defendants concealed, destroyed, withheld, and/or lied about the existence of

inculpatory evidence in prior personal injury litigation are barred by the “litigation

privilege.” This is an alarming proposition. The notion that the law would

“privilege” or protect a party’s conduct in concealing or destroying evidence

against claims by the very persons whose cases were undermined by such conduct

makes a mockery of those individuals’ right to have their day in court.

Public Justice submits this Brief in support of Plaintiffs and urges the Court

to heed the New Jersey Supreme Court’s admonition in applying the litigation

privilege that “[s]eeking truthful, accurate, and non-tainted testimony . . . is the

objective of every litigated case,” Loigman v. Township Committee of Twp. of

Middletown, 889 A.2d 426, 437 (N.J. 2006), so that conduct-such as that at issue

here-aimed at subverting the search for truth and justice has no claim to protection

under New Jersey’s litigation privilege.

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INTRODUCTION AND SUMMARY OF ARGUMENT

Plaintiffs filed this action on behalf of themselves and other persons

similarly situated alleging that all of the Defendants engaged in a practice of

defending against asbestos personal injury claims by:

gathering all of the evidence of asbestos in its talc, storing ordestroying the evidence and thereafter withholding and lying about itsexistence to mesothelioma, cancer and other victims sufferingasbestos induced diseases, their counsel, and those courts presidingover asbestos personal injury claims.

Amended Class Action Complaint (“Complaint”) (D.E. 70) ¶1. Plaintiffs assert a

number of statutory and common law claims for relief to persons who were

harmed by this conduct in the litigation and/or settlement of theirs or their

decedents’ personal injury claims.

Although all Defendants have moved to dismiss Plaintiffs’ and the putative

class’s claims on various grounds, only Defendants BASF Catalysts, LLC

(“BASF”) and Cahill Gordon & Reindel LLP (“Cahill”) make the extraordinary

assertion that their alleged concealment and destruction of evidence are protected

by what is known as the “litigation privilege” under New Jersey law. The New

Jersey Supreme Court has held that the litigation privilege applies to:

any communication (1) made in judicial or quasi-judicialproceedings; (2) by litigants or other participants authorized by law;(3) to achieve the objects of the litigation; and (4) that have some

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connection or logical relation to the action.

Hawkins v. Harris, 661 A.2d 284, 289 (N.J. 1995) (citation omitted). In

addressing the third of these requirements, Defendant BASF contends that its

communications and conduct in concealing and destroying evidence were made

“to achieve the objects of the litigation, i.e. to obtain in the asbestos cases

favorable results, which is the ultimate goal in any litigation.” BASF Brief at 28

(citation omitted). This contention, like the representations challenged in this

lawsuit, could not be further from the truth.

Ours is not a win-at-all-costs litigation system. In fact, in addressing the

litigation privilege’s application to an attorney’s motion to sequester a potential

witness in prior litigation, the New Jersey Supreme Court explained that

sequestration “serves the salutary purpose of ensuring that a witness who is

testifying not influence a witness who is about to testify,” and held that the motion

thus helped achieve the objects of the prior litigation because “[s]eeking truthful,

accurate, and non-tainted testimony certainly is the objective of every litigated

case,” so that the privilege applied. Loigman, 889 A.2d at 437; see also Hawkins,

661 A.2d at 290 (applying litigation privilege to investigator’s statements in pre-

trial investigation found to be made to achieve the objects of litigation because

“[p]retrial investigation is necessary to a thorough and searching investigation of

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the truth.”) (citation omitted).

By making clear that the search for truth is the “objective of every litigated

case,” these decisions eviscerate Defendants’ claim that the litigation privilege

protects their concealment and destruction of evidence merely because this

conduct was aimed at obtaining a favorable result for them. In fact, these

decisions compel just the opposite conclusion: because Defendants’ conduct

subverted the search for truth in the prior litigation, Defendants have no claim

whatsoever to protection under the litigation privilege.

Decisions by courts in other jurisdictions likewise support rejection of

Defendants’ litigation privilege defense. Granted, these decisions are not

unanimous in how they discuss the privilege’s application to conduct like that at

issue here involving concealment and destruction of evidence in products liability

litigation. Compare Matsuura v. E.I DuPont de Nemours and Co., 73 P.3d 687,

700 (Haw. 2003) (“Under Hawaii law, a party is not immune from liability for

civil damages based upon that party’s fraud engaged in during prior litigation

proceedings.”), with Green Leaf Nursery v. E.I. DuPont de Nemours and Co., 341

F.3d 1292, 1302 (11th Cir. 2003) (addressing same acts by same defendant as in

Matsuura, but holding that conduct is privileged under Florida law because it had

“some relation” to the underlying litigation). However, courts that have rejected

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the privilege’s application in cases such as this echo the recognition by New

Jersey courts that the object of litigation through the court system is not victory at

all costs, but the pursuit of truth and justice. See, e.g., Matsuura, 73 P.3d at 694

(“[C]ourts perform ‘two essential tasks: sifting through conflicting versions of the

facts to discover where truth lies, and applying the correct legal principles to the

facts as found.’”) (quoting In re Vincenti, 458 A.2d 1268, 1275 (N.J. 1983))

(internal citation omitted).

In light of the foregoing, the Court should hold that the litigation privilege

does not apply because Defendants’ conduct in concealing and destroying relevant

evidence purposefully undermined the core truth-seeking objective of litigation in

New Jersey’s courts.

STATEMENT PERTAINING TO OPERATIVE FACTS

When the Court decides a motion to dismiss under Fed. R. Civ. P. 12(b)(6),

“all facts alleged in the complaint and all reasonable inferences that can be drawn

from them must be accepted as true.” Digiacomo v. Teamsters Pension Trust

Fund of Phila. and Vicinity, 420 F.3d 220, 222 (3d Cir. 2005). Thus, in assessing

Defendants’ motions to dismiss based on the litigation privilege, the operative

facts are those set forth in Plaintiffs’ Complaint.

Although Plaintiffs’ extensive and detailed factual allegations are not

6


repeated herein, the arguments that follow accept as true the allegations that

Defendants BASF and Cahill “devised a strategy to defend [BASF] against

asbestos injury claims by gathering all of the evidence of asbestos in its talc,

storing or destroying the evidence and thereafter withholding and lying about its

existence to mesothelioma, cancer and other victims suffering asbestos induced

diseases, their counsel, and those courts presiding over asbestos injury claims.”

Complaint ¶1. Indeed, in arguing for dismissal based on the litigation privilege,

Defendants do not dispute the truth of the allegations that they engaged in an

extensive campaign to conceal and destroy inculpatory evidence in prior personal

injury litigation brought by Plaintiffs, putative class members, and their decedents.

LEGAL ARGUMENT

I. The New Jersey Supreme Court’s Decisions Recognizing the LitigationPrivilege Demonstrate Its Inapplicability to Acts of Concealment andDestruction of Evidence Aimed at Derailing the Search for Truth.

There are four distinct requirements for the litigation privilege to apply

under New Jersey law. To be protected by the privilege, a communication or

conduct must be “(1) made in judicial or quasi-judicial proceedings; (2) by

litigants or other participants authorized by law; (3) to achieve the objects of the

litigation; and (4) that have some connection or logical relation to the action.”

Hawkins, 661 A.2d at 289 (citation omitted).

7


Defendants’ communications and conduct here in concealing and destroying

evidence cannot satisfy at least the third of these requirements because this was

not done in pursuit of any legitimate object of litigation. Defendant Cahill does

not even try to demonstrate satisfaction of this requirement, which warrants

rejection of its argument for dismissal based on the litigation privilege. Defendant

BASF, however, attempts to satisfy this requirement by pointing to what it

considers to be an “object of litigation,” without any regard to the object’s

legitimacy. BASF contends that the statements and conduct at issue “were made

‘to achieve the objects of the litigation,’ i.e., to obtain in the asbestos cases

favorable results, which is the ultimate goal in any litigation.” BASF Brief at 28

(quoting Hawkins, 661 A.2d at 289). Thus, according to BASF, anything that it or

its lawyers do to try to win a case is protected by the litigation privilege because

winning “is the ultimate goal in any litigation.”

The New Jersey Supreme Court, however, has squarely rejected this view of

litigation as a win-at-all-costs undertaking. In recognizing the litigation privilege,

New Jersey law imposes the distinct requirements that communications or conduct

in question both “have some connection or logical relation to [litigation]” and be

intended to “achieve the objects of the litigation.” This distinction is critical

because it demonstrates that New Jersey courts do not protect all communications

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and conduct that are merely related to litigation under the privilege. Rather, they

protect only those made to achieve the objects of the litigation.2

In addressing whether and how communications were made to achieve the

objects of the litigation, the New Jersey Supreme Court has clearly articulated that

the object of litigation is not victory at all costs, but the search for truth and

justice. In Hawkins, the Court held that the privilege applied to an investigator’s

statements made during a pretrial investigation, finding that the “achieve the

objects of litigation” requirement was satisfied because “‘[p]retrial investigation is

necessary to a thorough and searching investigation of the truth,’ and, therefore,

essential to the achievement of the objects of litigation.” 661 A.2d at 290 (quoting

Van V. Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9

Colum. L. Rev. 463, 477 (1909)). The Court further explained that pretrial

communications by parties and witnesses “are protected to promote the

development and free exchange of information and to foster judicial and extra-

judicial resolution of disputes.” 661 A.2d at 290 (citation omitted). Here, of

This is not to say that other New Jersey courts have always been careful to2

make this distinction. See, e.g., Williams v. Kenney, 877 A.2d 277, 288 (N.J.Super. Ct. App. Div. 2005) (“The requirement that the communication be infurtherance of the objectives of the litigation is part and parcel of the requirementthat the communication have some logical relation to the action.”). Collapsingthese requirements together, however, results in a fundamentally different andmore free-ranging inquiry than that recognized by the State’s highest court.

9


course, Defendants’ concealment and destruction of evidence did just the opposite

by disabling the development and exchange of relevant information, and thereby

undermining the legitimate resolution of Plaintiffs’ and class members’ cases.

In Loigman, supra, the New Jersey Supreme Court was even more careful to

recognize in applying the litigation privilege that the search for truth and justice is

the only legitimate object of litigation through the courts. In Loigman, the Court

held that the privilege applied to a lawyer’s prior litigation conduct of filing a

motion to sequester a potential witness who wanted to attend trial proceedings.

After finding that the motion was a communication made in litigation by an

authorized participant, the Court addressed the “achieve the objects of the

litigation” requirement first by recognizing that “[s]equestration of witnesses

serves the salutary purpose of ensuring that a witness who is testifying not

influence a witness who is about to testify.” 889 A.2d at 437, (citing Morton

Bldgs., Inc. v. Rezultz, Inc., 603 A.2d 946, 949 (N.J. 1992)); see also Morton

Bldgs., 603 A.2d at 949 (“The purpose of sequestration is to discourage collusion

and expose contrived testimony.”). The Court thus held in Loigman that the

attorney’s sequestration motion in the prior litigation was privileged because

“[s]eeking truthful, accurate, and non-tainted testimony certainly is the objective

of every litigated case.” 889 A.2d at 437.

10


This is fatal to Defendants’ litigation privilege defense here. Defendants do

not and cannot reconcile their alleged conduct of concealing and destroying

relevant evidence with the truth-seeking objective of litigation that underpins the

privilege’s application under New Jersey law. If the type of conduct alleged in

Plaintiffs’ Complaint were protected by the privilege, then New Jersey would be a

place where “anything goes” in litigation, and the State’s highest Court’s

recognition that the search for truth is the “objective of every litigated case” would

be mere window dressing for a very different type of court system.

Since Defendants offer no answer for how their conduct in concealing and

destroying relevant evidence can be deemed to have been done in pursuit of the

truth as to Plaintiffs’ and class members’ claims in their personal injury cases, they

fail to establish the predicate for applying the litigation privilege. Accordingly,

their motions to dismiss should be denied.

II. Decisions From Other Jurisdictions That Share New Jersey’s Conceptof the Legitimate Objectives of Litigation Further Undercut AnyApplication of the Litigation Privilege Here.

In contrast to New Jersey’s clear law on this point, there are decisions by

courts in other jurisdictions that divide over applying the litigation privilege to

protect communications and conduct such as that alleged here involving

concealment and destruction of relevant evidence. A closer look at those

11


decisions, however, reveals that the jurisdictions that share New Jersey’s

recognition that the search for truth is the overriding objective of litigation

resoundingly reject the privilege’s application to this type of conduct.

Foremost among these is the Hawaii Supreme Court’s decision in Matsuura

v. E.I DuPont de Nemours and Co., 73 P.3d 687 (Haw. 2003). In Matsuura, the

Hawaii Supreme Court accepted a federal district court’s certification of the

question of whether, under Hawaii law, a party is “immune from liability for civil

damages based on that party’s misconduct, including fraud, engaged in during

prior litigation proceedings.” Id. at 688. This question arose out of products

liability litigation over DuPont’s agricultural fungicide, Benlate, which was

alleged in prior litigation to have destroyed crops because it was contaminated

with herbicides. Id. at 689. In the subsequent litigation that spawned the certified

question involving the litigation privilege, the plaintiffs alleged that DuPont had in

their earlier products liability cases:

(1) misrepresented critical test results performed by Alta Laboratories(Alta test results) that demonstrated that Benlate was contaminatedwith herbicides; (2) withheld evidence of widespread contaminationof Benlate; and (3) withheld field tests demonstrating that Benlatewas harmful to plants.

Id.

In addressing whether the litigation privilege would apply to this conduct

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under applicable state law, the Hawaii Supreme Court began by recognizing the

“interrelated policies associated with the litigation privilege,” which include:

(1) promoting the candid, objective, and undistorted disclosure ofevidence; (2) placing the burden of testing that evidence upon thelitigants during trial; (3) avoiding the chilling effect resulting fromthe threat of subsequent litigation; (4) reinforcing the finality ofjudgments; (5) limiting collateral attacks upon judgments; (6)promoting zealous advocacy; (7) discouraging abusive litigationpractices; and (8) encouraging settlement.

Id. at 693. The court proceeded to find that all but one of these objectives would

be served by rejecting application of the litigation privilege to the conduct at

issue. Id. at 694-99.

With respect to the first objective of promoting candid, objective, and

undistorted disclosure of evidence, the court explained that this “better enable[s]

the finder of fact to uncover the truth,” which is essential to the function of courts

as “forums for the discovery of truth.” Id. at 694 (citation omitted). The court3

then noted that the litigation privilege may further the truth-seeking function by

limiting liability for litigation misconduct because “the threat of liability might

Notably, in conceiving of courts as “forums for the discovery of truth,” the3

court relied in part upon the New Jersey Supreme Court’s longstandingrecognition that “courts perform ‘two essential tasks: sifting through conflictingversions of the facts to discover where truth lies, and applying the correct legalprinciples to the facts as found.’” Matsuura, 73 P.3d at 694 (quoting In reVincenti, supra, 458 A.2d at 1275) (internal citation omitted).

13


reduce the quantity and quality of evidence available to the finder of fact.” Id. In

returning to the conduct at issue, however, the court noted that DuPont was

“alleged to have fraudulently distorted the evidence presented in a prior

proceeding,” and found that “such misconduct is directly contrary to the policy of

promoting the candid, objective, and undistorted disclosure of evidence.” Id.

The court then came to similar conclusions with respect to all but one of the

litigation privilege’s remaining policy objectives as applied to the facts of the case

before it. See, e.g., id. at 694 (“[W]ithholding and destroying evidence obviously

frustrates the policy of placing the burden of testing the evidence upon the litigant.

Clearly, parties cannot test what is willfully and wrongfully withheld from

them.”); id. at 696 (“[W]hen there is an allegation of fraud, the policy of

reinforcing the finality of judgments does not favor limiting liability in a

subsequent proceeding.”); id. at 699 (“[E]ncouraging parties to forego the

protections associated with a trial requires adequate assurance that appropriate

remedies exist for settlements reached through bad faith and misconduct.”). 4

The one policy objective of the litigation privilege that Matsuura found to4

be generally applicable to all subsequent litigation, including that allegingconcealment and destruction of evidence, was avoidance of the “chilling effectresulting from the threat of subsequent litigation.” See 73 P.3d at 694-95 (“Giventhe importance of access to the courts, the policy of avoiding the chilling effectresulting from the threat of litigation generally favors limiting liability insubsequent proceedings.”).

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Notably, in rejecting DuPont’s argument that “promoting zealous advocacy”

weighed in favor of applying the privilege, the court emphasized that “there are

limits to how far an attorney should go in representing a client,” and that

“[l]itigation misconduct that amounts to a fraud on the court directly conflicts with

the pursuit of justice and never results from a reasonable advocate’s best

judgment.” Id. at 697 (citations omitted).

In light of this extensive analysis of the litigation privilege’s objectives, the

Hawaii Supreme Court held in Matsuura that, “[u]nder Hawaii law, a party is not

immune from liability for civil damages based upon that party’s fraud engaged in

during prior litigation proceedings.” Id. at 700. Whether this decision is deemed

to create a general rule concerning fraud allegations or one more tailored to

allegations of concealment and destruction of relevant evidence in prior

proceedings, Matsuura’s analysis of the litigation privilege supports the same

conclusion here that Defendants are not immune from civil damages liability based

upon their concealment and destruction of evidence in prior litigation.

Other courts have reached similar conclusions in rejecting the litigation

privilege’s application to such conduct. In Living Designs, Inc. v. E.I. DuPont de

Nemours and Co., 431 F.3d 353 (9th Cir. 2005), which also involved DuPont’s

concealment and destruction of evidence of the contamination of Benlate with

15


herbicides, the court followed Matsuura in holding under Hawaii law that “so long

as a cause of action for fraud is asserted, the litigation privilege does not protect

subsequent litigation asserting other causes of action stemming from the fraud

allegedly committed in prior proceedings.” Id. at 372.

In FMC Technologies, Inc. v. Edwards, 464 F. Supp. 2d 1063 (W.D. Wash.

2006), the court held that the litigation privilege did not apply to a plaintiff’s claim

for fraudulent inducement of settlement based upon the defendant’s concealment

and destruction of evidence of trade-secret theft that was the subject of prior

litigation. Id. at 1065. The court recognized a “larger actionable conspiracy”

exception to the litigation privilege, finding that the fraud claim before it was not

merely “a suit for trade secret theft ‘plus perjury,’” but rather was one alleging

“fraudulent inducement of a settlement–partially achieved by fabricating evidence,

providing deliberately deceptive discovery responses, and covering up the original

trade secret theft.” Id. at 1071. In finding that these allegations fell well outside

of the litigation privilege’s protection, the court noted that Washington’s litigation

privilege “‘is a judicially created privilege founded upon the belief that the

administration of justice requires witnesses in a legal proceeding to be able to

discuss their views without fear of a defamation lawsuit.’” Id. (quoting

Deatherage v. State Examining Bd. of Psychology, 948 P.2d 828, 830 (Wash.

16


1997)). However, the court emphasized that:

Encouraging frank, candid, honest witness testimony without fear offuture ‘perjury’ litigation is precisely the policy goal behind theprivilege that will not be accomplished if the Court now protects, inthe name of the litigation privilege, the evasive, fabricated, anddishonest testimonial conduct that allegedly occurred here. If eventsoccurred as Plaintiffs allege, Defendants’ conduct extended beyondperjury and into the realm of accomplishing a wrong greater thanperjury alone.

FMC, 464 F. Supp. 2d at 1071-72 (emphasis in original). In short, the goal of

encouraging candid and honest testimony in litigation would be hindered by

permitting parties to put forth fabricated or dishonest testimony while knowing

full well that they will never be held accountable. This plainly is not what the

litigation privilege was intended to protect.

Each of these decisions supports rejection of Defendants’ invocation of the

litigation privilege here. This is not simply because these cases involve identical

allegations of concealment and destruction of relevant evidence in prior litigation.

Rather, it is because they address this type of dishonest and fraudulent conduct in

the context of recognizing that the privilege is intended to foster the honest and

candid presentation of evidence in courts where the search for truth is the

objective of every litigated case. This same context has underpinned the litigation

privilege’s application and contours under New Jersey law.

17


It should be noted, however, that this conception of the privilege as, at

bottom, aiding litigation’s search for the truth has not prevailed in all jurisdictions.

As discussed, some courts recognize a more expansive application of the litigation

privilege under which allegations that a defendant “failed to respond to or issued

improper responses to discovery, gave untruthful testimony, . . . and took false

litigation positions” are barred by the privilege simply because the claims “depend

on acts with some relation” to other litigation. Green Leaf Nursery, supra, 341

F.3d at 1302 (emphasis added) (applying Florida law); see also Simms v. Seaman,

23 A.3d 1, 10 (Conn. App. Ct. 2011) (“The purpose of affording absolute

immunity to those who provide information in connection with judicial and quasi-

judicial proceedings is that in certain situations the public interest in having

people speak freely outweighs the risk that individuals will occasionally abuse the

privilege by making false and malicious statements.”); but see id. at 16 (Bishop, J.

dissenting) (“Immunizing lawyers from claims based on fraudulent behavior

serves no legitimate public policy purpose.”).

These decisions should not control this Court’s analysis of New Jersey’s

litigation privilege because they effectively elevate the interests of a represented

client over the truth-seeking function of the court system. As one court explained

in recognizing an arguably more expansive application of the privilege:

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We find that when an attorney is acting in his representative capacitypursuant to litigation, and not solely for his own interests, he shallenjoy the litigation privilege and shall not be subject to suit by anopponent of his client, arising out of his representative conduct andcommunications.

Taylor v. McNichols, 243 P.3d 642, 658 (Idaho 2010). Notably, even this analysis

only protects lawyers, and not the fraudulent conduct of a party (such as BASF).

Moreover, in doing so, this iteration of the litigation privilege does impose a

restraint upon lawyers by requiring that their advocacy further their clients’

interests instead of their own. However, by making service of a client’s interests

the only requirement for applying the privilege, such decisions at least implicitly

subordinate the truth-seeking function of litigation that has served as the policy

underpinning of New Jersey’s litigation privilege.5

In short, the division of authority in other jurisdictions over whether the

These decisions do recognize the existence of other restraints upon a party5

and its lawyer’s conduct in litigation that are imposed through the rules of civilprocedure and professional conduct. See, e.g., Taylor, 243 P.3d at 658 (“Webelieve our Rules of Civil Procedure, our Rules of Professional Conduct, and thecourt’s inherent authority provide adequate safeguards to protect against abusiveand frivolous litigation tactics.”) (citation omitted). The restraining effect of theserules, however is severely limited both because they are under-enforced and theyfail to provide adequate private remedies for persons actually harmed by offendingconduct. The civil and professional rules thus, by design, do not advance thedeterrent and compensatory functions that are served by private tort claims such asthose asserted here. See generally Paul T. Hayden, Reconsidering the Litigator’sAbsolute Privilege to Defame, 54 Ohio St. L.J. 985, 1038-40 (Fall 1993).

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litigation privilege applies to conduct like that alleged here involving concealment

and destruction of evidence should not detain this Court. Rather, because the

decisions that reject applying the privilege to such conduct do so because they

make the court system’s search for truth paramount to the personal interests of any

party to a litigation, these decisions better reflect the purposes and priorities that

underpin New Jersey’s litigation privilege. Accordingly, Defendants BASF and

Cahill’s arguments for applying the privilege to shield their win-at-all-costs

litigation strategy are contrary to New Jersey law and should be rejected.

CONCLUSION

For all of the reasons set forth herein, Defendants BASF and Cahill’s

motions to dismiss based upon the litigation privilege should be denied.

Dated: November 30, 2011

Respectfully submitted,

/s/ Esther E. Berezofsky Esther E. Berezofsky, Esq.WILLIAMS CUKER BEREZOFSKY, LLCWoodland Falls Corporate Center210 Lake Drive East, Suite 101Cherry Hill, NJ 08002-1163Tel: 856-667-0500Fax: 856-667-5133Email: [email protected]

Counsel for Amicus Curiae Public Justice, P.C.

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Of Counsel on the BriefArthur H. BryantAmy RadonPUBLIC JUSTICE, P.C.555 12th Street, Suite 1620Oakland, CA 94607

Michael J. QuirkWILLIAMS CUKER BEREZOFSKY, LLC1515 Market Street, Suite 1300Philadelphia, PA 19102

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