Thursday, May 7, 2009

Absent Class Member Denied Further Discovery Into Counsel's Files

The New York Court of Appeals has held that "the class counsel-absent member relationship is simply too unlike the traditional attorney-client relationship to support extending the Sage Realty presumption to absent class members." The presumption of the prior case was a right to access to a law firm's case files at termination of the representation. The case involved malpractice claims brought by the absent member against the Milberg Weiss firm. In denying further file access, the court states:

As the Appellate Division observed...the District Court long ago granted [plaintiff] access to the 23 boxes that apparently triggered his suspicions of fraud in the first place. When [he] was unable to convince the District Court that anything in the boxes, in fact, suggested fraud, the Judge declined to order further discovery or to reopen the 2003 settlement. The District responsible for protecting the interests of absent class members, which includes monitoring the adequacy of class counsel's performance. We cannot say that the Appellate Division abused its discretion by, in effect, declining to second-guess the District Court's judgments.

(Mike Frisch)

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