State ex rel. Abner v. Elliott, Judge

Donald Abner and other workers (the workers) (plaintiffs) sued manufacturers and other asbestos-related businesses (asbestos parties) for injuries from asbestos exposure. Judge George Elliott (defendant) was assigned to hear the Ohio claims. Baron & Budd, the law firm representing the workers, accidentally turned over to the defense in an asbestos litigation in Texas a memorandum entitled “Preparing for Your Deposition.” The memorandum explained to witnesses how their attorneys would be suggesting answers to them during their depositions, essentially advising witnesses to stretch the truth. When Judge Elliott learned about the memorandum, he ordered Baron & Budd to disclose all witness-preparation documents and to submit for in camera review any documents claimed to be work product or attorney-client privileged. Baron & Budd did not disclose any documents or submit any documents to the court for in camera review. At one deposition, counsel instructed the deponent not to answer questions concerning witness preparation despite Judge Elliott’s order overruling objections to the questions. One of the asbestos parties moved for sanctions. Judge Elliott found that the Texas deposition-preparation memorandum was evidence of improper witness coaching, it was reasonable to assume that similar materials had been used to coach witnesses in the Ohio litigation, and the workers had not complied with discovery orders. As a result, Judge Elliott ordered that upon defense counsel’s request, the jury would be instructed to consider the following as being conclusively proved facts: (1) prior to trial, the workers met with their attorneys to prepare; (2) at least one meeting occurred before preparation of the workers’ answers to written interrogatories and the workers’ depositions; (3) during each meeting, the attorneys either gave or showed the workers lists, photographs, or other items disclosing information about various asbestos products and the typical trade or job of workers who used those products; and (4) the attorneys told the workers it would be advantageous for them to name as many of those products as possible during their depositions. The court ordered that this instruction be given to the jury in any other asbestos litigation in the country in which counsel prevented court-ordered discovery of improper witness-coaching techniques. The workers filed a complaint in the court of appeals for a writ of prohibition to prevent Judge Elliott from enforcing his discovery orders. The court of appeals granted Judge Elliott’s motion to dismiss the complaint. The workers appealed.