Key Takeaways
Attorneys should be on notice that their advertising tactics could be discoverable by opposing parties for certain purposes, including statute of limitations defenses and jury selection preparation.
As anyone who has watched TV, used a social network, or driven down a busy interstate in the past several years can attest, legal advertising is pervasive. In 2023, an estimated $2.4 billion was spent on advertisements soliciting legal claims.
Recently, a state court considering a personal injury litigation permitted discovery into plaintiff counsel’s advertising. The case brought by Edelson, P.C. (“Edelson”) on behalf of plaintiffs who claim they were injured by allegedly cancer-causing ethylene oxide emissions from a medical sterilization facility owned by Terumo BCT Sterilization Services, Inc. (“Terumo”) is pending in Jefferson County, Colorado District Court. Terumo argues the lawsuits it faces are the result of an “advertising blitz” by Edelson including direct mail, billboard, television, and targeted social media advertisements. Mot. Compel Re Subpoena Meta Plats., Isaacks v. Terumo BCT Steril. Servs., Inc., No. 2022CV31124, at 1, (Colo. Nov. 18, 2024).
A dispute over the “aggressive” advertising campaign came to a head when Edelson refused to produce requested discovery relating to the advertisements. Terumo argued it was entitled to the documents to determine (1) when certain plaintiffs learned about the alleged connection between the emissions and their injuries, potentially triggering the statute of limitations; and to explore (2) issues of jury bias affecting the parties’ ability to conduct fair voir dire. Id.
A special master overseeing discovery in the case found a compelling need for the evidence, stating that without it, Terumo would be “hamstrung in [its] effort to mount a statute of limitations defense” and that all parties and the court would struggle to seat a jury that had not been influenced by pre-trial publicity ahead of the first bellwether trial, scheduled to begin on January 31. Special Master’s Order No. 2 Re Defs.’ Req. Auth. Subpoenas Pls.’ Counsel 3, (Colo. Nov. 21, 2024). The special master rejected Edelson’s contention that Terumo had already “thoroughly explored” how and when each Plaintiff learned that Terumo’s emissions might have caused their cancer through interrogatories and depositions. Pls.’ Opp’n Terumo’s Mot. Contempt 3-4, (Colo. Dec. 17, 2024). In granting the request to authorize subpoenas to Plaintiff’s counsel, the special master noted that Edelson left the Court with no alternative by refusing to provide information that “only Plaintiffs and their counsel [knew].” Special Master’s Order No. 2 Re Defs.’ Req. Auth. Subpoenas Pls.’ Counsel 3, (Colo. Nov. 21, 2024).
The Colorado District Court Judge affirmed the special master’s findings in a one-page order requiring Edelson to produce responsive documents within seven days of the order being issued. Order Defs.’ Mot. Contempt, (Colo. Jan. 3, 2025). Should Edelson fail to comply, it could be sanctioned, and/or its upcoming bellwether trial could be delayed. Id.
Contributors
The Re:Torts team would like to thank Victoria Lee for her contribution to this article.
