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Merck to employees: no more Vioxx voice-mails

Part of the game-show aspect of litigation is digging through every scrap of paper of a corporate party to find the document that can be taken out of context to fit within the opposing party's theory of the case. This is disruptive enough to business as it is, but as technology improves, the process of civil discovery becomes even more intrusive. A good example is the recent order of Judge Higbee to Merck ordering them to preserve and produce all voice-mails related to Vioxx—which means that if one employee leaves another employee a voice-mail message, and the second hits star-3 out of habit after listening to it, Merck could be held in contempt of court with potentially disastrous consequences in the litigation. Merck is thus forced to order its employees not to use voice-mail to discuss Vioxx (as well as engage in the huge cost of retrieving voice-mails so the plaintiffs' attorneys can engage in a fishing expedition in the attempt to attribute some low-level employee's off-hand remark to a wide-ranging conspiracy). Courts are hypothetically supposed to balance the benefits and the costs of discovery to prevent discovery from being too much of a burden, but with fifty-plus jurisdictions making discovery rulings, and such rulings being essentially unreviewable, a corporate defendant can expect to be forced to turn over everything eventually through tag-team judicial rulings; even if, say, the federal court wasn't inclined to order the production of voice-mail, once it's produced to New Jersey plaintiffs, the marginal cost of additional production no longer serves as a bar. (Peter Loftus, "Merck Tells Workers Not To Discuss Vioxx In Voicemails", Dow Jones/WSJ, Sep. 11 (also here)).

Separately, note the difficulty for providing a precise definition of the win-loss record: the statement "Merck has a 4-4 record in Vioxx trials that have reached a jury verdict and withstood post-trial motions" is false, because several verdicts have pending post-trial motions.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.