Issuu

STRONGER TOGETHER

I used to tell prior NATA Presidents that holding this position is a thankless job. I’ve had a few NATA members make similar comments to me. Now that I’m in this role, however, I cannot say I fully agree. The expressions of gratitude I receive on a regular basis from other NATA members serve as a constant reminder to me that what we do as an organization matters. If you practice on the plaintiffs’ side of civil litigation in Nebraska, I’m confident saying your practice has benefited by NATA’s good works.

When I think of NATA’s positive influences, I think of three primary areas:

• Community

• Education

• Advocacy

COMMUNITY

My personal favorite aspect of NATA is the community of exceptional trial attorneys the organization brings together. The access I have had to attorneys of all experience levels through NATA over the last 15 years is overwhelming. Early in my career, I sometimes needed to commiserate with another young attorney as a tiny little fish in the very big pond of Nebraska civil litigation. Knowing I was not the only one often struggling to find my way was reassuring in ways hard to describe. Other times I knew I was dealing with complex situations so far over my head I was not even sure I was seeing the issue, let alone knowing anything about how to address it. Yet with one phone call, I had a NATA member with 20 or 30 years of experience providing invaluable guidance.

I also do not take for granted the value in simply socializing with others in our field. Seeing a compatriot at a seminar or the

NATA summer meetings brings a smile to my face. We get together for a membership drive with fellow NATA members to make calls but we also find time for good conversation in between. Working in a field where you have a community of colleagues makes a career more enjoyable. If you feel like you have never experienced this type of community, I encourage you to lean further into NATA. As you get more involved, you will find yourself forming professional friendships that will last the rest of your career.

ADVOCACY

I spent the entirety of my last President’s Message detailing the efforts of the NATA Legislative Committee’s fight against tort reform. Accordingly, spending much time explaining the good work of NATA on the advocacy front seems redundant. I will, however, take a moment to recognize the work that has already gone into NATA’s advocacy efforts this year. The Legislative Committee efforts this year have been spearheaded by the excellent and dogged work of our President-Elect, Jennifer Turco-Meyer. One thing I am sure of is that if some version of tort reform gets passed this year, it will not do so because there was a lack of effort and commitment by Jennifer and the team she is leading. That effort does not end with Jennifer, it begins with her. Various other NATA members have spent time and effort meeting with state senators, bringing forward past and current clients to tell their stories, attending meetings, putting together talking points, and more. If you are still looking for a way to help, it is not too late. Engaging on NATA’s legislative issues is one of the most effective ways to get more involved.

PRESIDENT

Mark Richardson, Lincoln

PRESIDENT ELECT

Jennifer Turco Meyer, Omaha

SECRETARY

Elizabeth Govaerts, Lincoln

TREASURER

Cameron Guenzel, Lincoln

IMMEDIATE PAST PRESIDENT

Jonathan Urbom, Lincoln

Board Oversight Chair

Peter C. Wegman, Lincoln

NATA PAC Chair

Matt Lathrop, Omaha

DIRECTORS

Jason G. Ausman, Omaha

James C. Bocott, North Platte

Aaron Brown, Omaha

Eric Brown, Lincoln

Nathan Bruner, Kearney

John F. Carroll, Omaha

Gregory Coffey, Lincoln

Patrick Cooper, Omaha

Michael F. Coyle, Omaha

Tara DeCamp, Omaha

Joseph Dowding, Lincoln

Michelle Epstein, Omaha

Erin Fox, Omaha

Nancy Freburg, Kearney

Daniel Friedman, Lincoln

Mandy Gruhlkey, Omaha

Matthew Knowles, Omaha

Steven M. Lathrop, Omaha

Mandy L. Larson, Papillion

Danny Leavitt, Omaha

Kyle Long, Scottsbluff

Clarence Mock, Oakland

Robert R. Moodie, Lincoln

George H. Moyer, Jr., Madison

Michael Moyer, Madison

Kathleen M. Neary, Lincoln

Brody Ockander, Lincoln

Robert G. Pahlke, Scottsbluff

James Paloucek, North Platte

Ross Pesek, Omaha

Vincent M. Powers, Lincoln

Jeffrey Putnam, Omaha

Jon Rehm, Lincoln

Julie Shipman-Burns, Lincoln

Andrew D. Sibbernsen, Omaha

Terry Sibbernsen, Omaha

Mitchell Stehlik, Grand Island

Adam Tabor, Omaha

Julie Tabor, Omaha

Dan Thayer, Grand Island

Christopher P. Welsh, Omaha

Brock Wurl, North Platte

Executive Director

Deborah Neary

ASSOCIATE Director

Jane Jones

EDUCATION

Full disclosure – I am biased on this one. I can count on one hand the number of NATA seminars I have missed in the last five years. The reason I keep coming back is because I learn something new and valuable at every one of them. Are some NATA seminars better than others? Sure. I can admit that. But every single seminar has at least one (and usually many more) moments where I walk away going “I’m going to be a better litigator after learning that.”

“If I have one challenge to NATA members in this article it is this: when your fellow NATA member calls –answer.”

NATA seminars give you exposure and insight to countless issues impacting your trial practice. From the nuts and bolts of drafting effective discovery, to hearing new and inventive ways to advocate for your clients in front of a jury, to getting up to speed on the latest court rules and statutes impacting your prac-

Mark Richardson, President

tice, NATA’s yearly series of seminars will make you a better attorney. Period. Now the bad news. I have concerns about NATA’s seminars moving forward. It has become increasingly difficult to put the highest quality of seminars together over the last couple of years. Our executive committee members are having more and more NATA members turn down invitations to chair a seminar. Seminar chairs are seeing more and more NATA members turn down opportunities to speak. If I have one challenge to NATA members in this article it is this: when your fellow NATA member calls – answer. Don’t push the call to voicemail. Don’t ignore the email. Be willing to help other NATA attorneys improve their skills by sharing your own. Start viewing NATA seminars as a real opportunity to give back. Embrace the challenge. Answer the call.

editor Deborah Neary Nebraska Association of Trial Attorneys 6173 Center Street Omaha, NE 68106 402-435-5526

designer Heidi Mihelich cre8ivenergy

The Prairie Barrister is published quarterly by the Nebraska Association of Trial Attorneys. Inquiries regarding submission of articles and advertising should be directed to Deborah Neary, Executive Director.

The statements and opinions in editorials or articles reflect the views of the individual authors and are not necessarily those of NATA. Publication of advertising does not imply endorsement. © 2024 Nebraska Association of Trial Attorneys, Inc. Contents cannot be reproduced without permission.

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Breaking the Habit

Social media apps are at the center of a youth mental health crisis, and the kids and families impacted allege these products are addictive and defectively designed. Learn how plaintiffs are seeking justice.

By || Previn Warren

|| Previn Warren

BBeginning in September 2021, The Wall Street Journal began publishing a series of articles based on damaging internal documents that former Meta employee Frances Haugen leaked. 1 According to those internal studies, 41% of teen users began feeling “unattractive” while using Instagram.2 Thirty-two percent of teenage girls said that when they felt bad about their bodies, Instagram made them feel worse. 3 And 13.5% of teenage girl users said Instagram exacerbated their thoughts of suicide and self-injury.4

eginning in September 2021, The Wall Street Journal began publishing a series of articles based on damaging internal documents that former Meta employee Frances Haugen leaked. 1 According to those internal studies, 41% of teen users began feeling “unattractive” while using Instagram.2 Thirty-two percent of teenage girls said that when they felt bad about their bodies, Instagram made them feel worse. 3 And 13.5% of teenage girl users said Instagram exacerbated their thoughts of suicide and self-injury.4

self-harm—which certain platforms continued to feed her account even after her death.9 In a landmark ruling, the coroner concluded that Molly had died from “an act of self-harm while suffering from depression and the negative effects of online content.”10

Haugen’s revelations did not come as a surprise to Janet and Ian Russell. One morning in November 2017, Janet found the body of her 14-year-old daughter Molly hanging in her bedroom. 5 Ian recalled looking at his daughter’s web browsing history soon after her suicide and discovering “the bleakest of worlds.”6 He said, “It’s a world I don’t recognize . . . once you fall into it, the algorithm means you can’t escape it and it keeps recommending more content. You can’t escape it.”7

A coroner’s inquest held to determine the cause of Molly’s death8 revealed that she had been pushed thousands of graphic photos and videos relating to suicide, depression, and

Haugen’s revelations and the Molly Russell inquest have prompted a multinational reckoning with social media—our children’s heavy reliance on Instagram, Snapchat, TikTok, and YouTube; these platforms’ known tendency to create addictive behaviors and exacerbate mental health issues; and their detrimental impact on the educational environments in middle and high schools. In several of his State of the Union addresses, President Biden spoke about the harms social media causes, stating that “we must hold social media platforms accountable for the national experiment they’re conducting on our children for profit.”11

Surgeon General Vivek Murthy has issued an advisory on the effects of social media on youth mental health, calling for warning labels to be presented on these platforms and noting that “while social media may have benefits for some children and adolescents, there are ample indicators that social media can also have a profound risk of harm to the mental health and well-being of

children and adolescents.”12 Even those who have worked for these companies recognize the risks. Former Facebook employee Chamath Palihapitiya, who was a vice president for user growth, drew attention to the issue: “The shortterm, dopamine-driven feedback loops that we have created are destroying how society works.”13

Meanwhile, Congress has ramped up efforts to pass comprehensive legislation protecting children online, such as the Kids Online Safety Act, and the Federal Trade Commission has issued a notice for proposed rulemaking to further limit companies’ ability to monetize children’s data.14

Despite this flurry of activity and attention, social media platforms have continued to insist that they enjoy broad immunity from civil liability—in other words, that they cannot be held accountable for their role in triggering a nationwide youth mental health crisis that their own research warned of for years.15

That argument has been put to the test in In re Social Media Adolescent Addiction/Personal Injury Products Liability Litigation (MDL 3047)—and has so far failed. With this litigation, children and parents can finally seek recourse against social media companies through direct legal action.

Personal Injury Cases

The first cases that would later form the MDL against Instagram, Snapchat, TikTok, and YouTube were filed in early 2022 by parents and children who were determined to force these companies to take responsibility for their negligence and defective products. 16 When the Judicial Panel on Multidistrict Litigation (JPML) heard arguments in September 2022 to centralize those cases for pretrial purposes, 28 related actions had been filed in 17 districts.17 At the time of publication, close to 500 lawsuits have been filed in MDL 3047,18 which is pending in the Northern District of California.19

What duty, if any, does a social media platform owe to child users and their parents?

These consequential questions became a focus when the defendants in the MDL moved to dismiss two product design defect claims, two failure-to-warn claims, and a negligence per se claim based on violations of the Children’s Online Privacy Protection Act (COPPA). In granting in part and denying in part these motions, the court undertook a careful, fact-specific, conduct-oriented analysis for each of the threshold legal questions to determine which product defects could be subject to plaintiffs’

32% of teenage girls said that when they felt bad about their bodies, Instagram made them feel worse.

The personal injury plaintiffs bringing suit in this action allege Meta (Instagram and Facebook), Snap, 20 TikTok, and Google (YouTube) designed their products to be addictive and that the addictive nature of these products caused a wide range of mental and physical harms, ranging from clinical depression to suicide.21

MDL 3047 teed up several novel legal issues: Can social media platforms even be considered “products” so that products liability principles apply to them? Can social media platforms be held liable for the design of their platforms, notwithstanding 47 U.S.C. §230, a statute some have interpreted as a blanket immunity shield?22 How do tort claims asserted against social media companies intersect with the First Amendment, and does the right to free speech shield not just the content posted online but also the corporate conduct of online platforms?

claims.23 The court followed the same approach in October 2024 when, via a separate ruling, it addressed plaintiffs’ consumer protection, deception, and misrepresentation claims.24

The court began by noting the text of §230: “No provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The court rejected defendants’ argument that §230 functions as a catchall liability shield, instead insisting that the “application of §230 is more nuanced.”25

Specifically, the court observed that the plaintiffs “make myriad allegations that do not implicate publishing or monitoring of third-party content”26 the cornerstone of § 230 immunity. These allegations include design defect claims alleging that defendants failed to use robust age verification, implement adequate parental controls and

notifications, provide options to users to self-restrict their time on a platform, remove “barriers to the deactivation and deletion of accounts,” label images and videos that have been edited through appearance-altering filters, and implement protocols to allow users to report child sexual abuse material.27 The court allowed those products liability claims to proceed.

The court’s First Amendment analysis was similarly conduct-oriented. The court noted that “much of the conduct alleged by plaintiffs does not constitute speech or expression, or publication of same,” and thus was not protected by the First Amendment, just as it was not immunized by §230.

Finally, as to the question of whether the defendants’ platforms are products, the court once again examined each feature of each platform on its own terms, finding that each of the above-mentioned defects do implicate products and their design. For example, the court held that defendants’ failure to assist users in limiting their app usage is a “product” defect—analogizing those defects to “physical timers and alarms, which have long been in use.”

Importantly, the court has allowed the plaintiffs’ failure-to-warn claims to move forward in their entirety, with respect to all allegedly defective features of the defendants’ platforms. 28 That includes the defendants’ alleged failure to warn the public the recommendation algorithms that their platforms use are designed to maximize user engagement (and company profits), regardless of the collateral damage to children. Because of this aspect of the ruling, liability discovery is now open against all defendants with respect to all allegedly defective aspects of their social media platforms.

State and Local Government Actions

As noted above, hundreds of personal injury lawsuits have been consolidated

into MDL 3047. However, these families are not alone in their efforts to hold social media platforms accountable. Public institutions have also joined the fight. A coalition of 34 state attorneys general have filed suit directly into the MDL, alleging Meta has designed Instagram to be addictive, that Meta concealed health and safety risks from the public, and raising claims under the states’ consumer protection laws.29 The court has largely allowed the state attorneys’ general claims to proceed, subject to many of the same limitations placed on the personal injury plaintiffs.

An additional nine states, including New Mexico and Tennessee, have filed suits in their respective state courts raising similar claims. Meanwhile, school districts around the country have filed suit into the MDL, claiming Meta, Snap, TikTok, and YouTube have created a public nuisance by targeting their addictive products to kids.30

These districts claim school administrators, counselors, and teachers have been forced to manage the problems caused by social media addiction, 31 implementing smartphone bans, 32 hiring counseling staff, and dealing with social media-fueled misbehavior in classrooms. 33 In October, the court largely denied defendants’ motions to dismiss the school districts’ negligence claims.34 As of the time of publication, no ruling has been issued on the school districts’ public nuisance claims.

How to File a Case in the MDL

The mechanics of filing a personal injury case in MDL 3047 will be familiar to anyone who has filed a case in any other multidistrict litigation.35 Because plaintiffs’ leadership has already filed a comprehensive master complaint, an attorney filing a new case needs to file only a “short-form complaint” identifying the plaintiff, defendants, claims, injuries, and other basic details.

Short-form complaints should be filed in the Northern District of California and then uploaded to MDL Centrality here: https://www.mdlcentrality.com/. You need to simultaneously submit a form through MDL Centrality identifying your client’s social media accounts (known as a “plaintiffs’ preservation form”).

You have 105 days after filing the short-form complaint to submit a plaintiff’s fact sheet. For the plaintiff’s fact sheet, it is important to articulate in detail your client’s social media usage, the nature of their injuries, and their medical history and background. The most important information to have and understand when completing the fact sheet involves knowing which platforms contributed to the harm, details on the usage of those platforms, relevant medical diagnoses and attendant harms, and a list of the plaintiff’s treatment providers.

If you are having clients complete the fact sheet on their own initially, it’s imperative to thoroughly review the responses and ask clarifying questions where necessary. Remind your clients that these are discovery responses and that it is OK to leave questions blank where they don’t know or can’t access the answer, rather than to speculate. If counsel for any plaintiff has questions

or concerns regarding the contents or verbiage of the fact sheet, MDL leadership and plaintiffs’ steering committee firms are knowledgeable resources to lean on.

You may find that serving these clients can be challenging. Many young people whose addiction to social media has led to serious injury have also faced confounding trauma, including sexual violence and other forms of abuse. Working with a young, victimized client base requires heightened sensitivity and a trauma-informed approach.36

But the weight of this harm makes it all the more important that the thousands—if not millions—of kids and families across the country who are struggling due to the addictive power of social media and its tendency to lead young people down dangerous rabbit holes have the opportunity to pursue justice.37 MDL 3047 presents a powerful vehicle to help these individuals and hold some of America’s biggest and most profitable companies accountable for their role in perpetuating a national youth mental health crisis.

Previn Warren is a trial lawyer at Motley Rice in Washington, D.C., and can be reached at pwarren@ motleyrice.com. 7

Notes

1. Georgia Wells, Jeff Horwitz, & Deepa Seetharaman, Facebook Knows Instagram is Toxic for Teen Girls, Company Documents Show, Wall. St. J. (Sept. 14, 2021).

2. Id.

3. Id.

4. Id.

5. See Molly Russell Inquest: Online Life Was ‘The Bleakest of Worlds’, BBC (Sept. 21, 2022), https://www.bbc.com/news/ uk-england-london-62981964.

6. Id.

7. Dan Milmo, “The Bleakest of Worlds”: How Molly Russell Fell Into a Vortex of Despair on Social Media, The Guardian (Sep. 30, 2022), https://www.theguardian.com/ technology/2022/sep/30/how-mollyrussell-fell-into-a-vortex-of-despair-onsocial-media.

8. An inquest is a legal procedure in the United Kingdon where the coroner investigates the cause of death. See Inquests – A Factsheet for Families, The Coroners’ Courts Support Service, https:// coronerscourtssupportservice.org.uk/ wp-content/uploads/2018/11/CCSS-EL_ Inquest_Factsheet_Final29317221_3.pdf.

9. Id.; Molly Russell Inquest: Online Life Was ‘The Bleakest of Worlds’, BBC (Sept. 21, 2022), https://www.bbc.com/news/ uk-england-london-62981964.

10. Molly Russell Inquest: Schoolgirl, 14, Died by Self-harm While Suffering ‘Negative Effects of Online Content’, Coroner Finds, Sky News (Sept. 30, 2022), https://news.sky. com/story/ molly-russell-inquest-teenagerdied-by-self-harm-while-sufferingnegative-effects-of-online-contentcoroner-finds-12707322.

11. See Natasha Singer, Biden Wants Congress to Reduce the Risks of Social Media for Children, NY Times (Mar. 7, 2024), https:// www.nytimes.com/2024/03/07/us/ politics/congress-state-union.html.

12. Social Media and Youth Mental Health: The U.S. Surgeon General’s Advisory, Department of Human and Health Services, at 13 (May 23, 2023), https:// www.hhs.gov/sites/default/files/ sg-youth-mental-health-social-mediaadvisory.pdf; Dr. Vivek H. Murthy, Surgeon General: Why I’m Calling for a Warning Label on Social Media Platforms, NY Times (June 17, 2024), https://www.nytimes. com/2024/06/17/opinion/social-mediahealth-warning.html.

13. See Amy B. Wang, Former Facebook VP Says Social Media is Destroying Society With ‘Dopamine-driven Feedback Loops,’ Washington Post (Dec. 12, 2017), https:// www.washingtonpost.com/news/ the-switch/wp/2017/12/12/former-facebookvp-says-social-media-is-destroying-

society-with-dopamine-driven-feedbackloops/.

14. See FTC Proposes Strengthening Children’s Privacy Rule to Further Limit Companies’ Ability to Monetize Children’s Data, Federal Trade Commission (Dec. 20, 2023), https:// www.ftc.gov/news-events/news/ press-releases/2023/12/ftc-proposesstrengthening-childrens-privacy-rulefurther-limit-companies-ability-monetizechildrens.

15. Social media companies often rely on 47 U.S.C. § 230, commonly known as Section 230, to assert that they are not liable for any harms that result from use of their platforms.

16. The first case filed alleged that Defendants were liable for the wrongful death of an 11-year-old, “caused by [her] addictive use of and exposure to Defendants’ unreasonable dangerous and defective social media product.” Rodriguez v. Meta Platforms, 22-cv-00401, ECF No. 1 (N.D. Cal. Jan. 20, 2022).

17. See Transfer Order at 1, In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, No. 22-md03047 (N.D. Cal. Oct. 6, 2022), ECF No. 119.

18. In re: Social Media Adolescent Addiction/ Personal Injury Products Liability Litigation (MDL No. 2047), U.S. Dist. Ct. Northern Dist. Cal., https://www.cand.uscourts.gov/ in-re-social-media-adolescent-addictionpersonal-injury-products-liabilitylitigation-mdl-no-3047/.

19. Lawsuit Updates & History, Social Media Victims Law Center (Aug. 7, 2024), https:// socialmediavictims.org/social-medialawsuits/past-updates/#:~:text=July%20 2024%20MTD%3A%20As%20 of,slated%20for%20October%20 25%2C%202025.

20. Snap, Inc. was formerly known as Snapchat and is the technology company that offers the social media platform Snapchat.

21. See Plaintiffs’ Second Amended Master Complaint (Personal Injury), In re Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 22-MD-003047-YGR (N.D. Cal.), ECF No. 494.

22. See, e.g., Eric Goldman, Why Section 230 is Better Than the First Amendment, 95 Notre Dame L. Rev. 33, 36–39 (2019) (arguing that the §230 defense immunizes social media companies against defamation lawsuits, completely protects commercial speech, and is not overcome even when a plaintiff proves that a company had knowledge about the tortious or criminal content in question).

23. See Order on Motion to Dismiss, In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, No.

22-md-03047 (N.D. Cal. Nov. 14, 2023), ECF No. 430.

24. See Order on Motion to Dismiss, In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, No. 22-md-03047 (N.D. Cal. Oct. 15, 2024), ECF No. 1214.

25. Id. at 14.

26. Id. at 14–15.

27. Id. at 51–52.

28. See Order on Motion to Dismiss, In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, No. 22-md-03047 (N.D. Cal. Oct. 15, 2024), ECF No. 1214; Transcript of Proceedings at 25–28, In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, No. 22-md-03047 (N.D. Cal Nov. 16, 2023), ECF No. 457; Transcript of Proceedings at 36, In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, No. 22-md03047 (N.D. Cal. Mar. 21, 2024), ECF No. 714.

29. See Mot. to Dismiss Multistate Attorneys General Compl. and Fl. Attorney General Compl. ECF No. 517 at 26, In re Social Media Addiction, 22-md-3047.

30. The school districts’ public nuisance theory is similar in concept to that alleged in In Re: JUUL Labs, Inc., Marketing, Sales Practices, & Products Liability Litigation, 497 F. Supp. 3d 552 (N.D. Cal. 2020). In the same way that JUUL targeted children with their marketing, social media companies targeted children with carefully engineered algorithms, notifications, and other addictive product features.

31. See Viral ‘Devious Licks’ TikTok Challenge Encourages Kids to Steal From School, PBS (Oct. 25, 2021), https://www.pbs.org/ newshour/show/viral-devious-lickstiktok-challenge-encourages-kids-to-stealfrom-school (discussing a social media challenge that “encouraged students to record themselves stealing or vandalizing school property, then posting the video online”).

32. See Meg Oliver & Analisa Novak, Schools Across U.S. Join Growing No-phone Movement to Boost Focus, Mental Health, CBS News (Oct. 20, 2023), https://www. cbsnews.com/news/schools-no-phonemovement-focus-mental-health/ (noting that special “Yondr” pouches used to store students’ phones during the day costs “between $25 and $30” per student).

33. See David Ingram, A Teachers Union Says It’s Fed Up With Social Media’s Impact on Students, NBC News (Jul. 20, 2023), https://www.nbcnews.com/tech/ social-media/teachers-union-says-s-fedsocial-medias-impact-students-rcna95376 (“The nation’s second-largest teachers

THE POWER OF LITIGATION HOLD LISTS

By Abigail Burman and Anirudh Jonnavithula

The In re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation (MDL 3047) has been a significant step forward in holding tech companies accountable.1 It has also broken new ground on a critical issue for attorneys across the plaintiff bar: the discovery of information about litigation hold recipients.

Litigation hold lists are incredibly valuable for plaintiff attorneys, who frequently work against the fundamental information asymmetry between themselves and defendants. You should issue litigation holds when litigation is reasonably anticipated and you want to preserve records that may be relevant to the litigation. In addition to instructing individuals to not destroy any records, litigation holds often also alter an organization’s standard document retention procedures to ensure that all potentially relevant records are retained until the end of the hold.

Since a litigation hold list will include all the employees and organizations subject to a litigation hold for a particular case, the list can help identify new potential custodians and witnesses. But the size of the list and the roles of the employees on it can also inform disputes about the appropriate number of custodians and the scope of relevant material. As such, a defendant’s proposal to search the custodial files of only 10 custodians for information responsive to plaintiffs’ discovery requests is much less likely to be reasonable if there are hundreds of custodians on the litigation hold list. And, because litigation hold lists often include titles, they can help map out defendants’ corporate structure and decision-making relationships.

Perhaps because litigation hold lists are such rich sources of information, defendants often fight their disclosure by claiming that they’re privileged. The defendants in the social media MDL used this argument when plaintiffs sought litigation hold lists through both requests for production and Rule 30(b)(6) depositions.2

However, the magistrate judge overseeing discovery for the MDL held that “basic identifying information” of people placed on litigation holds is not privileged.3 In particular, unlike the actual contents of the litigation holds, “names, titles and dates are factual matters, not attorney work product.”4 As a result, defendants were required to produce a list of people who received litigation holds for the MDL,

union said . . . it was losing patience with social media apps that it says are contributing to mental health problems and misbehavior in classrooms nationwide.”).

34. See Order on Motion to Dismiss, In Re Social Media Adolescent Addiction/Personal Injury Prods. Liab. Litig., No. 22-md-03047 (N.D. Cal. Oct. 24, 2024), ECF No. 1267.

35. The template for a short-form complaint can be found here: https://motleyrice.com/ cocounsel/social-media-litigation.

36. See, e.g., Rebecca Howlett & Cynthia Sharp,

along with their job titles and the dates the litigation holds went into effect.5

Although this ruling is the first Northern District of California case to address disclosure of litigation hold lists during the ordinary course of discovery, it is consistent with other Northern District rulings that “basic facts” about litigation holds are discoverable.6 And it joins rulings from district courts across the country that factual information about the existence of litigation holds is not privileged.7

When dealing with large and complex defendants, litigation hold lists can be an invaluable resource. Attorneys should resist corporations’ attempts to hide this basic information behind groundless claims of privilege.

Abigail Burman is an associate and Anirudh Jonnavithula was a law clerk at Motley Rice in Washington, D.C., and they can be reached at aburman@motleyrice.com and ajonnav@gmail. com.

Notes

1. See Order on Mot. Dismiss at 14–16, In re Social Media Adolescent Addiction/Personal Injury Prods. Liab. Litig., No. 22-md-03047 (N.D. Cal. Nov. 14, 2023) (holding that certain social media design defects were not barred by §230), ECF No. 430.

2. Joint Status Rep. on Discovery at 11, In re Social Media Adolescent Addiction/Personal Injury Prods. Liab. Litig., No. 22-md-03047 (N.D. Cal. Apr. 12, 2024), ECF No. 750.

3. In re Social Media Adolescent Addiction/Personal Injury Prods. Liab. Litig., No. 22-md-03047, 2024 WL 1808607, slip op. at *2 (N.D. Cal. Apr. 25, 2024).

4. Id. at *3.

5. See id.

6. Doe LS 340 v. Uber Tech., Inc., 710 F. Supp. 3d 794 at 802 (N.D. Cal. 2024) (ruling that Plaintiffs were entitled to “basic facts surrounding [Defendant’s] litigation holds”); Thomas v. Circket Wireless, LLC, 2020 WL 7344742, at *3 (N.D. Cal. Dec. 14, 2020) (quoting Cohen v. Trump, 2015 WL 3617124, at *1–2 (S.D. Cal. June 9, 2015)) (“[Q]uestions about the ‘basic details surrounding the litigation hold[s]’ are fair game.”).

7. See, e.g., United Illuminating Co. v. Whiting-Turner Contracting Co., 2020 WL 8611045, at *3 (D. Conn. Oct. 30, 2020) (ordering a party to produce “a list of the recipients of the litigation hold notices”); Roytlender v. D. Malek Realty, LLC, No. 21-cv-00052, at 9 (E.D.N.Y. Oct. 6, 2022) (holding that information as to “whether Plaintiff was ever instructed to preserve documents, not the content of any instruction or the litigation hold notice itself” is not privileged); Davita Inc. v. Marietta Memorial Hosp. Employee Benefit Plan, 2024 WL 957734, slip op. at *6 (S.D. Ohio Mar. 6, 2024) (noting that “the fact that a litigation hold was implemented is not privileged or protected by work-product doctrine”).

Strategies for a Trauma-Informed Law Practice, American Bar Association (Oct. 26, 2021), https://www.americanbar.org/ groups/gpsolo/resources/ereport/archive/ strategies-trauma-informed-law-practice/.

37. Recent estimates indicate that over one third of 13 to 17-year-olds use TikTok, YouTube, Snapchat, and/or Instagram either “almost constantly” or “several times a day.” See Monica Anderson, Michelle Faveri & Jeffrey Gottfried, Teens, Social Media and Technology 2023, Pew Research Center (Dec. 11, 2023), https://www.

pewresearch.org/internet/2023/12/11/ teens-social-media-and-technology-2023/. Meanwhile, “one in three high school students and half of female students reported persistent feelings of sadness or hopelessness, an overall increase of 40% from 2009.” Protecting Youth Mental Health: The U.S. Surgeon General’s Advisory, Department of Human and Health Services, at 3, https://www.hhs.gov/sites/ default/files/sg-youth-mental-healthsocial-media-advisory.pdf. These statistics are anything but unrelated.

NATa PAC by

Matt Lathrop

LB156: A Step in the Right Direction

On May 4, 2024, the Nebraska Supreme Court decided the case of Joshua M. v. State, 316 Neb. 446 (2024). In her dissent, Justice Lindsay Miller-Lerhman wrote:

“[T]he complaint and record show claims of abuse and injuries that are independent of and do not arise from assault and battery. The complaint and record show that in addition to the beatings and sexual assaults, DHHS failed to remove the siblings from the foster home when it had ‘actual’ notice of the abuse; that for many years, the caseworker ‘ha[d] been trying to report abuse/neglect’ by the foster parents; and that the foster parents warned the siblings that if they reported the abuse and it were investigated, ‘the only thing they’ll be picking up is a dead body.’” Joshua M. v. State, 316 Neb. 446 (2024).

“[T]he siblings, along with others reporting on their behalf, sought help from therapists and DHHS, but were not successful at changing the escalating abuse.” Joshua M. v. State, 316 Neb. 446 (2024).

A majority Per Curiam opinion of our Supreme Court determined that the plaintiffs – minor children who were sexually and physically assaulted and abused by their foster parents, of which DHHS had actual notice – could not bring a negligence claim against DHHS, and the State of Nebraska, for their horrible injuries.

The plaintiffs had alleged negligence in the conduct of the state actors. They did not allege an assault, or other intentional conduct. They alleged a failure of the duty of ordinary care by state actors, to protect them from harm. (The same breach of duty for which parents lose custody of their children every day, in this state, ironically, resulting in child placement in foster care. See, e.g. State v. Gary L. (In re Sireyha B.), 2019 Neb. App. LEXIS 139 (Neb. Ct. App. Apr. 29, 2019); State v. Yolanda A. (In re Interest Messiah T.), 279 Neb. 900, 782 N.W.2d 320 (2010)).

The Supreme Court did not even acknowledge that DHHS failed these kids, nor did the Court deny it. The Court, in cold and bureaucratic language, found the state was immune because the children were victims of intentional conduct, which is right there, in the immunity statute.

“There is no debating that the abuse of a child entrusted to the foster care system is deplorable. If the Legislature determines, as a matter of public policy, that tort recovery should be allowed against the State or its political subdivisions for at least some claims arising out of assault or battery, it can narrow the scope of the current exemption under the STCA and the PSTCA through the usual lawmaking process.”

Joshua M. v. State, 316 Neb. 446 (2024).

The interpretation of this state’s sovereign immunity statute by the Nebraska Supreme Court in Joshua M. is a dangerous

wave of the judicial wand that overturned precedent going back to 1977. K oepf v. County of York, 198 Neb. 67, 251 N.W.2d 866 (1977).

This decision by our Supreme Court will not be corrected by “the right set of facts,” brought on appeal, to correct this one-off decision. You read it, in their own words. The only way to correct this frightening development in the law is legislatively.

Overturning the entire impact of this decision, and its predecessor, Moser v. State, 307 Neb. 18 (2020), will take a consistent, methodical application of will upon the legislature.

In 2023, the Legislature began this work by passing LB25 (with no votes to spare). This bill was the first step in protecting our children. With this law, public schools would be accountable for predatory teachers whose dangerous criminal backgrounds, or sketchy work histories, warn of the looming danger. Our Governor vetoed that law!

A veto override was not possible.

Presently, LB156, introduced by Sen. Danielle Conrad will once again answer the Supreme Court’s challenge to correct their judicial legislation. This is the same bill passed by the Unicameral in 2023.

Public hearing is scheduled in the Judiciary Committee for March 26, 2025.

I am not the chair of NATA’s Legislative Committee, but I am using my column to support the committee and as a call to action.

The Judiciary Committee is persuadable. However, they need to see overwhelming support for this bill. Please, reach out to your Senator. Please, contact the chair of the Judiciary Committee, Sen. Carolyn Bosn, and encourage her to vote the bill out of committee.

Better yet, attend the hearing. Ask your clients and friends to attend. Though you may not have been affected by the issue in the Joshua M. case, you cannot escape it’s reach.

A study conducted by the Crimes Against Children Research Center found that 1 in 10 children will experience sexual misconduct by a school employee by the time they graduate high school. In an average classroom, that is 2 or 3 kids.

The impact of this legislation touches every Nebraskan with a son, daughter, niece, nephew, grandchild, or neighbor who attends a public school.

I hope you will join NATA and show your support for the effort to make our schools safer.

CONTRIBUTORS NATA PAC is the political arm of the Nebraska Association of Trial Attorneys. It was established as a vehicle by which Nebraska trial lawyers could encourage and support candidates for public office who believe in ensuring the rights of the citizens of Nebraska by preserving the advocacy system.

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GEORGE W. NORRIS WILLIAM JENNINGS

NEBRASKA ASSOCIATION OF TRIAL ATTORNEYS SEMINAR

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Does it Happen to Everyone?

In the bustling corridors of the Douglas County Courthouse, the busiest courthouse in Nebraska and known as the “Hall of Justice,” the Prairie Barrister found themselves face to face with a young lawyer who was clearly in distress. The young lawyer’s voice trembled with frustration and disbelief.

“Prairie Barrister, I don’t understand what just happened,” the young lawyer began. “The judge’s recent order was completely upside down. They cited directly from the defense counsel’s brief without checking their legal citations. The citation was given to the court by the insurance lawyer who knew the case had the exact opposite holding, but the judge never even checked the citation before putting it in their order. I provided the correct legal standard and citation that was key cited and confirmed to be up to date.”

“Ouch,” replied the Barrister, knowing this kind of thing happens more than it should.

The young lawyer continued, “And they weren’t just wrong on the law, they were wrong on the facts

too. I provided the evidence that shows the facts cited in the order are wrong. But the judge wrote demonstrably incorrect facts in their order anyway.”

The young lawyer continued, “Was it me? Is it something about how I write? About how I argue? Does this happen to everyone or just me?”

The Prairie Barrister listened patiently, understanding the depth of the young lawyer’s frustration and the personal toll it was taking. Then, with a touch of wry humor, replied, “No, it doesn’t happen to everyone—just civil plaintiff lawyers arguing for negligence victims against corporate power!”

The young lawyer let out a small, disbelieving laugh. “What? But why? Why is it like this?”

“It’s a confluence of several factors,” the Prairie Barrister began. “First, let’s consider the background of most judges. Hardly any judges have ever practiced plaintiff law. A few might have dabbled, but rarely were they a dedicated civil plaintiff trial lawyer who then chose to become a judge. And it took me ten years of dedicated practice to really understand the

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ins-and-outs of civil litigation, so a judge with minimal or no experience handling these cases can be forgiven for not understanding all the dynamics at play.”

The young lawyer took a breath, “Well, sure, but some of them have civil litigation experience, right?”

“If they have any experience with civil trial practice, it is usually as a former insurance or corporate lawyer turned judge, which is not the same at all. In fact, that can feel like having a second opponent on the bench.”

“Exactly,” the young lawyer interjected, “I have experienced that before.”

The Prairie Barrister continued, “Many judges are former prosecutors who never handled civil plaintiff cases and don’t really understand the intricacies involved. They see their docket and know 99 out of 100 times these cases settle before trial. I’ve had multiple judges tell me they can go a year or more between civil jury trials — which means they may have only handled a few in their entire career.”

The Young Lawyer nodded. “Wow. Because they know the cases usually settle, they know even less cases are appealed. The bottom line is, they know even a wrong decision is unlikely to ever be reviewed so why put too much time and effort into it with so many other pressing matters to address?”

“On that, there is a little bit of justification,” added the Prairie Barrister. “Afterall, the judges are swamped with divorces, criminal cases and more. It isn’t like they have nothing else to do. These civil disputes usually take care of themselves, so putting their time on other matters can seem smart to them.”

The Prairie Barrister a continued, “But judges sometimes miss the larger truth that often, civil justice is the only justice the victims of crimes will receive directly or that the harm caused by simple negligence of running a stop sign, for example, can be huge and urgent, like death and severe permanent injury.”

The young lawyer sighed, the weight of reality setting in. “And the sympathy they show—it’s surprising. Many judges have dealt with criminal defense litigation tactics as a prosecutor or from the bench and deal with it efficiently and no nonsense. But it is totally different in civil litigation.”

“That’s true,” the Prairie Barrister agreed. “Civil defendants for money damage verdicts receive more leeway to delay, deny, and defend. It’s perplexing, given the civil defendant has sometimes been a criminal defendant that received zero sympathy during no-nonsense criminal proceedings.”

“And the pretrial rulings,” the young lawyer continued, frustration creeping back into their voice. “They always seem to delay the trial. The defense never seems to have enough information disclosed, yet they hardly disclose anything themselves. They make dubious accusations with no proof but so many such accusations, on so many topics, that it makes simple cases seem complex. In the end, the judges end up overwhelmed by unimportant side issues, start to believe there is too much going on to have a trial and continue deadlines and trial - which is all the defense wanted to begin with.”

“Exactly,” the Prairie Barrister said, a note of empathy in their voice. “Civil defense lawyers are often masters at using delay tactics. They will slow down every step of the process and then turn around and claim that they need more time. When judges buy it, it is a frustrating cycle.”

“But here’s the silver lining,” the Prairie Barrister continued, leaning forward. “The jury is our ultimate saving grace. It may take years of frivolous litigation. You may face headwinds from your opponent and the bench, but that is precisely why the Seventh Amendment exists. So you, the trial lawyer, can argue about truth and justice to your neighbors, the jury, and sideline all the legal gamesmanship. It gives us, the trial lawyers, one shining opportunity to set it all right.”

“The Seventh Amendment is my favorite amendment,” said the Barrister, “It is the reason I try every case I can to a jury. Never to the bench if I have a jury right. Certainly, never giving the power to set the value of a case to my opponents, corporate or insurance lawyers!”

The young lawyer looked up, hope rekindled in their eyes. “So, we just have to be patient and persistent?”

“Exactly,” the Prairie Barrister affirmed. “If you keep your focus on preserving your trial right and trial date, you can deflate the importance of these squabbles and erase every single litigation battle. With this mindset, you’ll gain patience.”

“As an added bonus, if you keep a patient, professional attitude, sometimes a judge will surprise you. One time, a judge sided with my opponent for years during pre-trial litigation but then, during the trial, they realized my opponent was supplying them bad law and their rulings would be reviewed on appeal. The damn broke and the judge started applying the law as it was written, exactly the opposite of how my opponent had been arguing, and we got a tsunami of favorable rulings – just in the nick of time.”

“Ask yourself this, would you rather have the judge give you favorable ruling for years during pre-trial litigation or for a few days at trial?

“Trial, of course!” The young lawyer responded quickly.

“So, let me ask you a question, on this most recent order you mentioned: Do you still have a jury trial right and a trial date?”

The young lawyer smiled big, “Now that you mention it, yes. I do still have my trial right and trial date.”

“Then you are still in the game,” the Prairie Barrister said calmly.

The young lawyer nodded, a sense of calm settling over them. “Thank you, Prairie Barrister. I needed to hear that.”

“Anytime,” the Prairie Barrister replied warmly. “Remember, you’re not alone in this fight. We all face these challenges, but it’s our commitment to justice and our belief in the truth that guides us through. Despite everything, keep faith in the process, and trust that the jury will see the truth and deliver justice.”

As the young lawyer walked away from the Prairie Barrister, they felt a renewed sense of purpose. The road ahead might be fraught with challenges, but with patience, persistence, and a steadfast belief in the power of the jury, they knew they were ready to carry the torch forward. Continued from page 18

Get the Settlement

Your Client Deserves

There is no settling when it comes to settlement agreements. You worked tirelessly to prepare your client’s case. Now, take all that drive, effort, discovery, and testimony to the settlement table and obtain an outcome that best serves your client.

By || Chris Johnson and Susan Ulrich

Most trial lawyers prepare cases with an eye on trial. The vast majority of civil cases, however, never make it to a jury. In 1938, when the Federal Rules of Civil Procedure were first promulgated, about 20% of all civil cases went to trial.1 Today, less than 2% do.2

Because most of our clients’ cases will never make it to the jury, it behooves us to focus on two distinct and very different audiences while working up cases: first, the jurors; and second, the defendant’s decision-makers—that is, its insurance adjuster and in-house attorneys.

The more damaging the evidence against the defendant, the more likely the defendant will meet your settlement demands. However, the defendant’s decision-makers don’t necessarily give equal weight to similar evidence in similar cases, so comparable cases can have vastly different outcomes.

Take, for example, a case in which the plaintiff, a 70-year-old man, worked in industrial settings throughout his career. He was exposed to asbestos at multiple different jobsites through different products. He developed mesothelioma and eventually passed away, leaving behind his wife and adult children. The parties reached a substantial settlement.

In another case with the same basic

facts—a 70-year-old man also worked in industrial settings throughout his career, developed mesothelioma, and passed away, leaving behind his wife and adult children—the parties reached a settlement double that of the other case. Why is one case worth twice the other? The ways plaintiff attorneys gather evidence and present testimony play large roles in settlement outcomes. Use these tips to create a strong settlement demand.

1Don’t Let Defendants Use Protective Orders as Swords

Attorneys who handle products liability cases have likely seen plenty of discovery responses that read, “[Defendant] will produce certain documents . . . only after entry of an appropriate confidentiality agreement and/or protective order in this matter,” or “In the absence of an appropriate confidentiality agreement and/or protective order, [Defendant] should not be required to disclose certain information.” For too long, defendants have successfully, and with little resistance, weaponized protective orders against plaintiff attorneys, our clients, and the public as a whole.3

There is no reason for trial lawyers to agree to defendant-proposed protective orders. When defendants address the

confidentiality of their documents, they routinely do so as if they speak from a position of strength. They do not. In Publicker Industries, Inc. v. Cohen, the Third Circuit stated, “Public access to civil trials, no less than criminal trials, plays an important role in the participation and the free discussion of governmental affairs. Therefore, we hold that the ‘First Amendment embraces a right of access to [civil] trials . . . to ensure that this constitutionally protected ‘discussion of governmental affairs’ is an informed one.’”4

For that critical reason, the party asking for a protective order bears the burden of justifying confidentiality for every single document it wants to seal,5 and that requires that the defendant show “good cause” with specificity.6 It is incumbent on each of us to understand the defendant’s burden and to hold the defendant to it.

Don’t hesitate to reject provisions in a defendant’s proposed protective order or to propose provisions that accurately track the rules. If the defendant refuses to agree to a proper protective order, file a motion to compel, and force the defendant to justify its position to a judge. Refuse to allow the defendant to hide valuable discovery behind its “need” for an unfair and improper protective order.

Even when the defense appropriately asks plaintiff counsel to entertain a protective order, there are several important considerations. First, never blithely agree to destroy documents after a case resolves. In products liability cases especially, we will see a similar case in the future. Why allow the defense to force plaintiff attorneys to reinvent the wheel every time we have a similar case?

We must also insist that any stipulated protective order includes a “sharing provision” that ensures we’re able to keep confidential documents for our own use in other cases and lets us share

the documents with plaintiff attorneys who are handling similar cases. Place the burden to justify confidentiality where the law does: on the defense. Any good protective order will include a provision that states that if the plaintiff objects to a confidentiality designation, the defense—and not us— has to file a motion to maintain that designation within a certain number of days of receiving the objection. The law places the burden on the sealing proponent, and we should not choose to undo that.

Once you have the right protective order in place, analyze the defense’s documents carefully with the correct standard in mind. If the defense designates a document as “confidential” bogusly, raise your objection early. This does three things. First, the defense attorney will know you’re on top of the obstacle. Second, you’ll be able to use crucial defense documents without obstacle. Finally, the defense will not be able to hide behind its “confidential” designation in other cases.

2Push for Meaningful Discovery

In products liability cases, the defendant often has almost all of the information related to liability. Obtaining meaningful discovery is everything. For example, in a very large litigation involving a well-known herbicide, defense attorneys tell jurors around the country that the defendant’s products and their “active ingredients” are the most studied chemicals in history. They claim that the U.S. government and other agencies around the world have correctly concluded that their products are perfectly safe. What they don’t say— and what our clients can’t know—is that many of the company’s own studies show that the product does, in fact, cause tumors. Those documents are, of course,

in the defendant’s files.

3Don’t Let Defendants Skirt Discovery Requests

The Federal Rules of Civil Procedure require defendants to disclose information relevant to plaintiffs’ claims in civil cases. 7 In many states, such as California, parties must provide specific information if they are unable to comply with a request for production. The California Code of Civil Procedure, for instance, requires parties to:

“affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”8

Many defendants don’t try to comply with these requirements. Instead, they routinely provide noncommittal, vague, boilerplate responses. If we allow this, those ambiguous responses prevent us from determining whether the defendant searched properly for discoverable documents or whether they are improperly withholding discoverable documents. You can take several steps to apply pressure on the defense to fully respond to discovery and produce all the relevant documents in its possession.

Meet and confer. Sit down with defense counsel and request complete

and straightforward responses. If the defendant drags its feet or refuses to provide adequate responses, move to compel and request sanctions. This invariably leads to the “new discovery” of documents on the eve of the hearing.

Network. Oftentimes, a defendant will be craftier and more opaque about its discovery abuse. Defendants regularly provide seemingly complete responses, claiming to not have responsive documents. Remember that products liability and mass tort cases involve many victims and multiple firms litigating against the same or similar companies in multiple jurisdictions. Seek help from other firms who have dealt with the same defendant.

The easiest way to find potential ally firms is through list servers maintained by groups like AAJ, your state trial lawyers association, or other trial lawyer groups. For products liability cases, AAJ’s Products Liability Section and Litigation Groups are great resources to collaborate with others working on the same litigation. The best way to get materials is to ask. Post a request on the list server for documents, discovery responses, and deposition and trial transcripts.

Do a little sleuthing. Run searches on Westlaw, Lexis, or PACER to find publicly available information on the defendant. Once you identify other cases against the defendant, you’ll be able to identify and contact the plaintiff firm that handled the case. Also, you can almost always download documents directly from court websites.

Once you have these materials, you might notice how the defendant offers up one nugget of information in one case and a different nugget in another case. For example, in a case we handled, the defendant had been providing varying levels of documents from case to case. When we realized that the defendant had been holding out on us, we immediately

demanded that it produce every page that it should have already produced and threatened sanctions.

This put enormous stress on the defendant in a palpable way. For the most part, the local attorney exited the conversation, and we commanded the attention of the national coordinating counsel. In addition to producing thousands of supplementary documents, the defendant engaged fully in settlement and paid the highest number it had ever paid in similar cases.

In another products case our office handled, the defendant denied in multiple discovery responses over the years ever selling asbestos-containing products. We knew this was a lie because we had depositions and discovery responses in which the defendant stated otherwise to plaintiff lawyers in other jurisdictions. Even though our clients had settled years before we found this information, we were able to bring a fraudulent inducement lawsuit, and the defendant wound up compensating the plaintiff even more.

4Make the Defendant Produce More Than an ‘Empty Suit’

But defendants often ignore the rule’s language. Rule 30(b)(6) mandates that the defendant designate and educate a person to testify on its behalf.10 That means that the defendant cannot simply put up an empty suit. It must sufficiently prepare a representative on the listed topics. When a defendant fails to do so, there are grounds for sanctions.11 In this vein, it is critical to make a clear record of what the representative knows; how they learned it; what they did to prepare to testify; and what documents, media, and items they reviewed.

5Lean Into Your Damages Case

If we can’t prove liability, a discussion of damages is all but moot. Punitive damages most often come into play in more egregious products cases. 14 But most products liability cases come down to compensatory damages.

In cases in which the plaintiff has a shortened life expectancy, it’s essential to depose them as soon as possible. Your focus should be on having your client discuss how the injury or disease has affected their life. Start with a “before and after” comparison. What was your client’s life like before the diagnosis? What is it like now? For jurors to understand a person’s damages, they need to understand what your client had and what they lost because of the defendant’s conduct.

Federal Rule of Civil Procedure 30(b)(6) and its state counterparts require corporate defendants to designate witnesses to testify on their behalf in a meaningful way. 9 Defendants often claim that they do not have a witness with the knowledge to testify on a subject. This is especially true when a substantial amount of time has passed since the product injured your client and you have started to prepare the case for trial. Employees move on to positions elsewhere, retire, and even pass away. And oftentimes, the defense just doesn’t want to find the right person to testify because it knows that doing so will help your case.

Create a record that you can stand on when you ask the court for sanctions. This is critical. For example, we had a case in which the company’s representative was very poorly prepared. To make matters worse, he admitted that his attorney spoon-fed him the little information he did have, which the attorney compiled for him in a binder, complete with tabbed sections. The representative relied on this binder so much that every time we asked him a question, he referred to it— and sometimes even asked us which tab to turn to. That preparation was not sufficient, and the court granted our motion for sanctions. The company representative wound up testifying at three separate depositions, all at the defense’s cost.

the plaintiff’s damages than having a co-worker share how they’ve watched your client lose the ability to work?

As trial lawyers, it is our job to champion our clients’ causes. To do that, we must consider the audiences we address in litigation: the jurors and the defense decision-makers.

Remember that Rule 30(b)(6) and its state counterparts relate to depositions. Nothing in the federal rules, or most state rules, exempt the witness from testifying within the rules of evidence at trial.12 What does this mean? The rule requires corporate witnesses to testify within their personal knowledge.13 So, just because a witness is testifying as a corporate representative, they may not recite what the company told them to say. Some judges might not agree, but it is worth researching and filing motions to limit this improper testimony before trial.

Defense attorneys know when to tell their adjusters and in-house lawyers that the plaintiff’s case is too strong to go to trial. A settlement that makes the plaintiff whole is then likely. Whether you catch the defendant lying in discovery, hiding behind “confidentiality,” or offering up a representative who has no knowledge

Steer the plaintiff to talk about how their condition has affected their spouse, family, friends, and community. Do they feel despair because they have to lean on others? Do they feel that they disappoint their children and grandchildren when they can’t attend school and extracurricular activities or birthday parties? Are they unable to fulfill their responsibilities? This approach lets your client describe their situation in a powerful way. Later in the case, have your client’s family or friends testify, describing how the illness or injury has diminished your client’s enjoyment of life.

Besides family and friends, are there others who can illustrate how the product has damaged your client? Treating physicians are persuasive witnesses because jurors are more likely to view them as unbiased, and they speak from a position of authority. Supervisors and co-workers may also provide compelling testimony. This is especially true when we’re talking about a person who has a strong loss-of-earning-capacity claim. What better way to describe

of the issues at hand, careful case development and planning for future similar cases can help you reach the best settlement for your injured client.

Chris Johnson is a partner at Waters Kraus Paul & Siegel in Dallas and Galiher DeRobertis & Waxman in Honolulu. Susan Ulrich is a partner at Waters Kraus Paul & Siegel in Los Angeles. They can be reached at cjohnson@waterskraus.com and sulrich@waterskraus.com.

the plaintiff’s damages than having a co-worker share how they’ve watched your client lose the ability to work?

As trial lawyers, it is our job to champion our clients’ causes. To do that, we must consider the audiences we address in litigation: the jurors and the defense decision-makers.

of the issues at hand, careful case development and planning for future similar cases can help you reach the best settlement for your injured client.

Notes

1. Jeffrey Q. Smith & Grant R. MacQueen, Going, Going, but Not Quite Gone: Trials Continue to Decline in Federal and State Courts. Does It Matter?, 101 Judicature 27, 28 (2017); see also C.J. Williams, Advocating Altering Advocacy Academics: A Proposal to Change the Pedagogical Approach to Legal Advocacy, 25 Suffolk J. Trial & App. Advoc. 203, 212–13 (2020) (describing the number of state civil cases proceeding to trial as only .06 to 1.8% of the total number of civil cases and less than 1% of federal cases proceeding to trial).

7. Fed. R. Civ. P. 26–37.

8. Cal. Code Civ. Proc. §2031.230.

9. See generally Fed. R. Civ. P. 30(b)(6).

10. Id.

11. Fed. R. Civ. P. 37(d). See, e.g., Omega Hosp., LLC v. Community Ins. Co., 310 F.R.D. 319, 323 (E.D. La. 2015).

12. See Charles W. Branham III, Control the Story, Trial, at 34 (July 2022).

2. Smith & MacQueen, supra note 1, at 28.

3. See generally Karla Gilbride & Jared Placitella, Overcoming Secrecy, Trial, at 18 (Nov. 2022).

13. Fed. R. Evid. 602.

2. Smith & MacQueen, supra note 1, at 28.

4. 733 F.2d 1059, 1070 (3d Cir. 1984); see also In re Avandia Mktg. Sales Practices, & Prods. Liab. Litig., 924 F.3d 662, 670 (3d Cir. 2019).

5. In re Avandia, 924 F.3d at 671.

3. See generally Karla Gilbride & Jared Placitella, Overcoming Secrecy, Trial, at 18 (Nov. 2022).

14. See, e.g., Johnson v. Monsanto Co., 52 Cal. App. 5th 434, 456 (Cal. Ct. App. 2020) (upholding jurys decision to award punitive damages when the jury initially awarded $250 million in punitive damages); Ingham v. Johnson & Johnson, 608 S.W.3d 663, 719 (Mo. Ct. App. 2020) (discussing case in which jury awarded $4.14 billion in punitive damages).

4. 733 F.2d 1059, 1070 (3d Cir. 1984); see also In re Avandia Mktg. Sales Practices, & Prods. Liab. Litig., 924 F.3d 662, 670 (3d Cir. 2019).

5. In re Avandia, 924 F.3d at 671.

6. Id. (outlining the sealing proponent’s burden and non-exhaustive factors courts will consider).

7. Fed. R. Civ. P. 26–37

8. Cal. Code Civ. Proc. §2031.230.

9. See generally Fed. R. Civ. P 30(b)(6).

10. Id

11. Fed. R. Civ. P. 37(d). See, e.g., Omega Hosp., LLC v. Community Ins. Co., 310 F.R.D. 319, 323 (E.D. La. 2015).

12. See Charles W. Branham III, Control the Story, Trial, at 34 (July 2022).

13. Fed. R. Evid. 602.

NATA YOUNG LAWYERS

by Sam D. Colwell

GETTING INVOLVED FROM A YOUNG LAWYER’S PERSPECTIVE

As young attorneys, it is easy to take a myopic approach to our early career development. We are focused—as we should be—on becoming the best attorney possible and doing all the things necessary to reach that goal. We draft pleadings, discovery requests, and briefs. We conduct legal research and read Nebraska Supreme Court advance sheets. We attend and participate in depositions, hearings, and oral arguments. While those skills are certainly critical to developing legal acumen, I’m learning that prowess in a courtroom or conference room does not capture the entire picture of what it means to be a good attorney. To be the best trial attorney you can be, you must get involved outside the typical parameters that we associate with the practice of law.

GET INVOLVED IN YOUR COMMUNITY

We are privileged as young attorneys to possess a unique skill set that can make a lasting impact on our communities. We have the opportunity to help strengthen local organizations, assist and advocate for vulnerable populations, and foster civic engagement. As young attorneys, we can:

• Promote Access to Justice. If you haven’t yet, try taking on a pro bono case or two. If you have taken pro bono matters, take some more. Pro bono representation can be very rewarding and remind you of why you went to law school in the truest sense—to help people who need help. For instance, for some low-income Nebraskans, a $10,000 property damage claim asserted against them significantly impacts their bottom line. They may be unable to otherwise afford legal representation, but taking on that case pro bono may help keep food on their table.

• Strengthen Community Organizations. There are plenty of volunteer opportunities for attorneys in our communities. Passionate about an issue or cause? Try to find a non-profit organization that supports that issue and see if you can join their board. You can make a difference.

• Attend Networking Events. On its face, plaintiff personal injury law does not lend itself to the traditional appeals of legal networking or relationship-building, such as building a client base. However, being involved in the legal community outside of your firm can reap rewards for your practice and clients. You will develop relationships with other plaintiff and defense counsel. You will develop referral networks for attorneys who may not practice personal injury law, or for your clients who have legal needs that you cannot address.

GET INVOLVED WITH NATA

There is an incredible network of trial attorneys across the state who are ready, willing, and able to provide tips and tricks for young attorneys. Being active in NATA promotes several important components of being a good trial attorney.

• Skill Development. NATA puts on some of the very best one-day seminars in the region. I have never left a NATA seminar without new insights that I can implement into my practice, whether it be

trial skills or interesting pre-trial strategies. Plus, it is a golden opportunity to mingle with other trial attorneys.

• Community. It is so important to develop a sense of community and camaraderie with other trial attorneys. Somewhere, there is a NATA member who has experienced the joy or disappointment that you may feel after a certain hearing or ruling. The practice of law can be isolating, so developing relationships with other practitioners to share success with (or commiserate with) is helpful for your practice and mental health. The NATA Listserv is active, and there is always another attorney willing to help.

• Legislative Involvement. One of my favorite aspects of my involvement with NATA is participation in the legislative process. This has been a very active legislative session dealing with tort reform efforts in our Legislature and NATA is heavily involved in trying to keep the tort system fair for the injured people we represent. On February 5, 2025, our firm had multiple clients testify in opposition to tort reform efforts—not because it would have impacted their claim, but because it would have negatively impacted Nebraskans who found themselves in similar situations. Helping to guide our clients through that process and hearing them tell their stories to lawmakers was one of the more fulfilling moments in my career so far.

GET INVOLVED IN YOUR LIFE

Investing in your life outside of the office is not a luxury; it is a necessity for a successful legal career. In law school, I tried to implement a strict 36-hour relaxation period, typically lasting from 6:00 p.m. on Friday until Sunday morning. I tried to take a break from any thoughts about law school and did not touch anything related to law school. Of course, there were exceptions, but I found that this 36-hour period allowed me to reset and focus during the other 132 hours of the week. I’ve attempted to carry this through into practice, and to the extent possible, tried to avoid working into the evening hours. Again—some exceptions, but I’ve found this general approach has many benefits.

• Prevent Burnout. Sustained stress and overwork impact mental and physical health. When our health and wellbeing is negatively impacted by our own stress, our professional performance suffers. Taking up hobbies and pursuing interests outside of the legal field help to ensure a long and sustainable career by allowing us to actually enjoy the work we do.

• Improve Client Relationships. Our clients want us to be humans. A balanced and well-rested attorney is more present, empathetic, and has more energy to focus on our clients’ cases. Clients are observant. We play an important role in guiding them through some of the most difficult days of their lives. In my experience, clients want to be around someone who they can connect with—they do not want to feel like they are just another file for an overworked attorney.

• Lead a Happier Life. It is important to be passionate about our work. However, at the end of the day, remember what you work hard for.

Thank you to our speakers and organizers for the successful CLE Seminar held on February 21, 2025!

Why Choose Us?

verdicts & settlements

verdict

$2,500,000 Vehicle Collision

Sarpy County

Date of Verdict: February 28, 2025

Plaintiff Attorneys: Dan Friedman, Jordan Glaser, Brody Swanson (Peterse Law)

A 52-year-old self-employed individual, who suffered significant losses when the Defendant lost control of her vehicle and sideswiped the plaintiff’s vehicle, disabling and totaling it. At the time of the accident, the Defendant was acting within the course and scope of her employment with Defendant Cedar Youth Services, Inc.

As a result of the crash, the plaintiff sustained a mild traumatic brain injury, faced mediated nerve pain, and developed cervicogenic and migraine headaches. Medical evidence presented at trial also indicated a permanent disability, further impacting his ability to work and maintain his livelihood.

A settlement was offered of 1.5 million during the trial. Four medical doctors, a chiropractor and an optometrist were used during trial.

WASHINGTON UPDATE

FEBRUARY 2025

I recently returned from AAJ’s Winter Convention, where I addressed the Council of Presidents and spoke with many representatives from associations across the country. It was reassuring and energizing to be with our trial lawyer members.

As always, there is much work to be done to safeguard Americans’ rights.

AAJ is extremely concerned about the recent attacks against the judiciary after courts issued rulings on challenges to many of the administration’s recent executive orders.

AAJ’s mission includes the commitment to further the rule of law. We fully support the ability of the courts to fulfill their role to interpret and apply the law without fear of retribution. We must have checks and balances—and accountability.

On February 18, AAJ’s Board of Governors passed a Resolution in Support of the Rule of Law.

I urge trial lawyers everywhere to continue to zealously advocate for your clients. You continue to be the safety net the American people rely on to protect their rights.

By Linda Lipsen, CEO American Association for Justice

ADVOCACY UPDATES

This month, AAJ and its grassroots campaign Take Justice Back® (TJB) are highlighting on social media the 100th anniversary of the Federal Arbitration Act (FAA) to tell the public about the harmful use of forced arbitration clauses that have infiltrated nearly every aspect of our lives.

Check out TJB’s posts on Facebook, Instagram, X (formerly Twitter), and TikTok.

Over the course of 100 years, the FAA evolved from a statute meant to help businesses to a tool powerful corporations use to strip Americans of their Seventh Amendment rights. AAJ has fought back at every turn —including helping pass the Ending Forced Arbitration for Sexual Assault and Harassment Act in 2022.

The fight is far from over. We’re committed to restoring access to justice and holding corporations accountable.

THE EXPANDING FRONT

AAJ’s advocacy work has expanded profoundly over the past 30 years. Where we once handled bills pertaining to only two areas— products liability and medical malpractice—now, between our state and federal teams, we are handling more than 200 issues.

Corporations are feeling emboldened, and we will not cave. Uber has invested millions in a campaign to cap attorney fees at 20% in Nevada. Uber Sexual Assault Survivors for Legal Accountability and the Nevada Justice Association mounted an aggressive legal challenge to this effort and on January 27, the Nevada Supreme Court sided with the plaintiffs, ruling that Uber’s ballot initiative to cap plaintiffs’ attorneys’ fees in all civil actions was “misleading and confusing.” AAJ is proud to partner with TLAs to prepare for their advocacy battles and protect the Seventh Amendment. This initiative will not appear on a ballot in Nevada this year, and Uber will face a steeper hill to climb if it attempts similar efforts in other states.

LEGAL AFFAIRS

AMICUS CURIAE UPDATE

AAJ’s amicus brief program addresses issues of access to justice and the right to a jury trial that are important to our lawyers’ clients and their practices. We often file amicus curiae briefs jointly with state TLAs and other national pro-consumer groups.

We had a recent victory in Maryland where the state supreme court upheld the constitutionality of the Child Victims Act of 2023, which eliminated a previously existing statute of limitation (SOL) on child sexual abuse lawsuits. Maryland’s law represents one of the best laws in the country for protecting child sex abuse survivors.

This is the third state supreme court opinion on child sexual assault SOL laws published within the same week. Maine struck down its law and North Carolina upheld its law. AAJ filed amicus briefs in the Maryland case with Public Justice, the Maryland Association for Justice, Child USA, and Change the Conversation, and in the Maine case with the Maine Trial Lawyers Association.

In the first six weeks of 2025, AAJ filed five briefs in state and federal courts on clickwrap arbitration agreements, constitutionality of qui tam claims, the right to trial by jury in Camp Lejeune claims, caps on damages, and personal jurisdiction.

You can access AAJ’s amicus briefs on our website. For more information or to request AAJ amicus support, please email our legal affairs team.

FEDERAL RULES UPDATE

Over the past decade, the number of proposed rules considered by the rules committees of the Judicial Conference has increased dramatically. This work has expanded our advocacy for lawyers and their clients, enabling us to fight bad proposed rules on discovery, depositions, class actions, expert witnesses, and MDLs. There are also now proposed amendments that would enhance plaintiff law practices.

Most recently, at the end of January, AAJ filed testimony and comment on FRAP 29—Brief of an Amicus Curiae. The public hearing occurred on February 14.

Unlike some rules debates where defense and plaintiff interests are diametrically opposed, most organizations oppose one or more aspects of the FRAP 29 proposal. AAJ’s comment, among other things, states that while we never agree with the U.S. Chamber’s Center for Litigation on the merits, we agree with them that this proposed rule is problematic. Our two primary concerns are:

• Elimination of party consent, which will require leave of court (permission from the court) to file a brief. This will lead to motion practice, be more expensive for amici, and be time-consuming for the courts.

• The addition to the rule of a “Purpose” section would have the federal appellate courts policing briefs for redundancy, among other things. Amici may not know whether their proposed brief is redundant with another amici until they request permission to file, at which point, they have already expended resources to write the brief, and the court may be perceived as “playing favorites” by deciding whose brief it will accept.

AAJ believes it would be better policy to adopt the rule of the U.S. Supreme Court and accept all briefs. Alternatively, if the Appellate Committee does not wish to accept all briefs, it should retain the existing rule providing for party consent, which should allow for amici to obtain consent from the parties in a vast majority of cases.

The public hearing docket, including the witness list and the submitted testimony, is available. The comment docket closed on February 17.

AAJ is proud to collaborate with state and local trial lawyer associations nationwide to share and build upon our successes so that the right to a jury trial is protected and all plaintiff trial lawyers can obtain justice for their clients.

CONTACT

AAJ Advocacy Email: advocacy@justice.org

we are stronger together

JOIN US IN THE FIGHT FOR JUSTICE

The American Association for Justice (AAJ), formerly the Association of Trial Lawyers of America (ATLA®), is an organization committed to promoting accountability and safety, advocating for a balanced civil justice system, improving our communities, and educating lawyers to provide excellent advocacy for their clients.

As a member of AAJ, you will play a meaningful role in the fight to protect the Seventh Amendment while accessing the tools you need to most effectively represent your clients against even the most powerful corporations and industries.

AAJ is the only national plaintiff lawyer association working as an advocate for trial lawyers on a broad range of issues, using lobbying, litigation, and public education to promote a fair and effective civil justice system.

JOIN THE AMERICAN ASSOCIATION FOR JUSTICE

Join us online at justice.org/Join or by contacting us at 1-800-424-2727.

Membership in the Circle of Advocates at an annual dues of $2,000 and Sustaining Membership at an annual dues of $1250 provide needed financial support for NATA’s work in service to its members, their clients, and the public.

CIRCLE OF ADVOCATES

Jason G. Ausman, Omaha

Todd D. Bennett , Lincoln

Eric B. Brown, Lincoln

James A. Cada, Lincoln

Maren Chaloupka, Scottsbluff

Patrick Cooper, Omaha

Nancy S. Freburg, Kearney

Daniel H. Friedman, Lincoln

Stephen L. Gerdes, Omaha

Elizabeth A. Govaerts, Lincoln

2025

Matt Lathrop, Omaha

Robert R. Moodie, Lincoln

George H. Moyer, Jr., Madison

Robert G. Pahlke , Scottsbluff

James J. Paloucek, North Platte

Jon Rehm, Lincoln

Mark R. Richardson, Lincoln

Richard J. Schicker, Omaha

Ryan Sewell, Omaha

Julie Shipman-Burns, Lincoln

SUSTAINING MEMBERS

William D. Andres, Omaha

James Bocott, North Platte

D.C. “Woody” Bradford, Omaha

Aaron Brown, Omaha

Nathan Bruner, Kearney

John F. Carroll, Omaha

Gregory R. Coffey, Lincoln

Michael F. Coyle, Omaha

Tara DeCamp, Omaha

Joseph C. Dowding, Lincoln

Michelle Epstein, Omaha

Dan Fix, Lincoln

2025

NEW MEMBERS

Mandy M. Gruhlkey, Omaha

Cameron Guenzel, Lincoln

James W. Knowles, Jr., Omaha

Matthew J. Knowles, Omaha

Robert M. Knowles, Omaha

Mandy L. Larson, Papillion

Steve Lathrop, Omaha

Danny Leavitt, Omaha

Kyle J. Long, Scottsbluff

Lee S. Loudon, Lincoln

Clarence E. Mock, Oakland

Michael G. Mullin, Omaha

FEBRUARY MEMBERSHIP

Anthony Hernandez , Johnson & Pekny

Jeremiah Luebbe , Steffens Law

Tymber Long, Barry Law

Drew Graham, Svehla Law

Kemp Preston, Creighton Law

Amzie Bohaty, Svehla Law

Jon Thomas, Svehla Law

Andrew D. Sibbernsen, Omaha

Jacqueline M. Tessendorf, Columbus

Dan Thayer, Grand Island

Jennifer Turco Meyer, Omaha

Jonathan D. Urbom, Lincoln

Peter C. Wegman, Lincoln

Christopher P. Welsh, Omaha

Brock Wurl, North Platte

Kathleen M. Neary, Lincoln

Melany O’Brien, Omaha

Brody Ockander, Lincoln

Ross Pesek, Omaha

Vincent M. Powers, Lincoln

Jeffrey Putnam, Omaha

Shayla Reed, Omaha

Terrence J. Salerno, Omaha

E. Terry Sibbernsen, Omaha

Mitchell C. Stehlik, Grand Island

Adam C. Tabor, Omaha

Julie Tabor, Omaha

Prairie Bannister Spring 2025

STRONGER TOGETHER

COMMUNITY

ADVOCACY

EDUCATION

Breaking the Habit

Personal Injury Cases

State and Local Government Actions

How to File a Case in the MDL

THE POWER OF LITIGATION HOLD LISTS

LB156: A Step in the Right Direction

ROSCOE POUND

CONTRIBUTORS

NEBRASKA ASSOCIATION OF TRIAL ATTORNEYS SEMINAR

PROGRAM SCHEDULE

Does it Happen to Everyone?

Get the Settlement

Your Client Deserves

1Don’t Let Defendants Use Protective Orders as Swords

2Push for Meaningful Discovery

3Don’t Let Defendants Skirt Discovery Requests

4Make the Defendant Produce More Than an ‘Empty Suit’

5Lean Into Your Damages Case

NATA YOUNG LAWYERS

GETTING INVOLVED FROM A YOUNG LAWYER’S PERSPECTIVE

GET INVOLVED IN YOUR COMMUNITY

GET INVOLVED WITH NATA

GET INVOLVED IN YOUR LIFE

Why Choose Us?

verdicts & settlements

verdict

WASHINGTON UPDATE

FEBRUARY 2025

ADVOCACY UPDATES

THE EXPANDING FRONT

LEGAL AFFAIRS

AMICUS CURIAE UPDATE

FEDERAL RULES UPDATE

CONTACT

we are stronger together

JOIN US IN THE FIGHT FOR JUSTICE

CIRCLE OF ADVOCATES

2025

SUSTAINING MEMBERS

2025

NEW MEMBERS

FEBRUARY MEMBERSHIP

Articles inside

NATA YOUNG LAWYERS

Get the Settlement Your Client Deserves

Does it Happen to Everyone?

LB156: A Step in the Right Direction

Breaking the Habit