Lone Pine orders and proposed revisions to rule 26(b) (1).

AuthorRedmond, Robert F., Jr.

This article originally appeared in the February 2015 Toxic and Hazardous Substances Litigation Committee newsletter.

THE Judicial Conference of the United States has recently approved revisions to Rule 26. The most significant revision is to Rule 26(b)(1). The proposed revision advances the concept of proportionality in discovery by restating and reinvigorating previous language that had been buried in Rule 26(b)(2)(C)(iii). This paper examines whether the proposed revision to Rule 26(b)(1) engrafts a Lone Pine Order onto complex tort cases pending in federal court.

Given the historical purpose of Lone Pine Orders and the objectives of revised Rule 26(b)(1), defense counsel can make a good argument that complex tort cases in federal court should include the general provisions of a Lone Pine Order.

  1. Background on Lone Pine Orders

    Lone Pine orders are based on a 1986 opinion, Lore v. Lone Pine Corporation. (1) Lone Pine was an environmental exposure case arising from the Lone Pine Landfill in New Jersey. Dozens of plaintiffs brought suit against 464 defendants. The plaintiffs alleged personal injury and property damage claims. The New Jersey trial judge, Judge Wichmann, was concerned that the plaintiffs' claims were too vague and would unnecessarily subject the defendants to burdensome and costly discovery unless the claims were whittled down before discovery commenced.

    Judge Wichmann crafted a case management order that required each plaintiff to provide certain basic information before discovery commenced. Judge Wichmann required the plaintiffs to produce:

    * A description of each individual plaintiff's exposure to each toxic substance;

    * Medical reports substantiating causation for these injuries;

    * A description of each plaintiffs diminution of property value claim;

    * The addresses for each parcel of affected property;

    * Reports from real estate experts supporting the diminution of valued claims.

    Judge Wichmann believed that the plaintiffs' counsel should have obtained this information before filing suit. He gave the plaintiffs' counsel four months to provide the required information. He extended the deadline for another two months.

    At the end of the deadline, the plaintiffs' counsel were unable to provide a single medical report from any plaintiff s treating doctor. Judge Wichmann wrote:

    Plaintiffs' attorneys stated that the doctors and treating physicians contacted by him were unwilling to commit to a causal connection. If they are unwilling who, then, can provide the information. The plaintiffs' counsel were also unable to provide any addresses for allegedly contaminated real property. The plaintiffs' counsel could only provide a two and one-half page report from a single real estate expert to support the diminution in value claims. The "report" was not even from a real estate expert but rather a broker.

    Judge Wichmann dismissed the plaintiffs' claims; providing the following rationale:

    A trial judge assigned to handle a matter dealing with over 400 defendants and 120 attorneys should direct that at least a modicum of information dealing with damages and causal relationship should be established at the outset of the...

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