3M wants a look into a plaintiff-generating machine used by lawyers
By John O’Brien
PHOENIX (Legal Newsline) – 3M is wondering what exactly goes on when a plaintiff-recruiting service sends clients to law firms to sue it over the ear plugs it sold to the U.S. military.
The television ads by plaintiffs lawyers are routine and seek service members who suffered hearing loss after being equipped with 3M’s ear plugs. The claims have been consolidated in a multidistrict litigation proceeding in Pensacola, Fla., federal court.
But in that litigation, 3M is now asking that a group known as Top Class Actions answer its questions and not hide behind a duty it says it owes to plaintiffs to keep their information secret.
“TCA misconstrues its role,” 3M’s lawyers wrote on June 19 in a motion filed in Arizona federal court. “First, TCA is not a lawyer that owes a duty of confidentiality to its clients under the Arizona Rules of Professional Conduct.
“TCA’s clients are law firms, not the potential claimants in the Combat Arms Earplugs litigation.”
As is the case with many mass torts, some the ads seen on television are not run by the lawyers pursuing the case. The advertisers can also be lead-generators who pass on the client’s information to attorneys who are actually litigating for a fee.
When 3M asked for certain information from TCA, which maintains a website with an ear plugs page to find potential plaintiffs, the company noted TCA has a disclaimer that says it “is not a law firm” and that any information it gives should not be considered legal advice.
“Any information you submit to (TCA) does not create an attorney-client privilege,” TCA warns.
TCA is arguing it is a lawyer’s agent, and its clients do not waive privilege because of that.
“(I)t was not engaged by any law firm to assist in providing legal advice,” 3M says. “TCA was engaged by law firms to provide leads for potential claimants.”
3M’s original subpoena sought:
-Documents related to submissions to TCA’s website;
-Documents relating to the advertising directed to prospective plaintiffs;
-Communications between plaintiffs firms and TCA relating to prospective plaintiffs;
-Documents relating to the referral of prospective plaintiffs; and
-Documents regarding any financial interest or ownership any plaintiffs law firm has in TCA.
On Feb. 21, TCA made several objections to the subpoena but agreements were eventually made except for information TCA felt was protected by attorney-client privilege.
On May 7, TCA produced more documents, along with a privilege log identifying what it was holding back or redacting on the basis of privilege. It said it would not produce that information without a court order, so 3M filed the Arizona motion.