Plaintiffs Seek Contempt Order

True, this decision is a bit dated, but in the Nugget’s defense it just popped up in Lexis the other day -- and it’s gets juicy. Seems Plaintiffs in the CV Therapeutics Inc securities class action want defense counsel held in contempt for allegedly revealing confidential witness information. Here’s how Judge Susan Illston (N.D. Cal.) sorted it all out.

"Plaintiff asks the Court to hold defendants in contempt and impose sanctions based on their alleged violation of this Court's December 7, 2004 order restricting disclosure of the identities of the confidential witnesses ("CWS") in this case. According to plaintiff, defendants' counsel disclosed to CW3 the identities of CW1 and CW2; plaintiff submits the declaration of CW3 attesting to this fact. In that declaration, CW3 also states that defense counsel made the potential threat that, if he did not provide a declaration retracting his prior statements to plaintiff, he would be deposed. Plaintiff asks the Court to hold defendants in contempt and, as a sanction, to foreclose defendants from deposing any of the CWs."

"Defendants submit a declaration from their counsel stating that he has no recollection of making this disclosure and that he believes it never occurred. They suggest that CW3 instead learned the identities of CW1 and CW2 through the biographical information in the CW statements, which defense counsel provided to CW3. In addition, defendants deny that defense counsel's statement constituted a threat of deposition, and argue that counsel was merely explaining that an affidavit would avoid the need for a deposition. Defendants speculate that plaintiff's proposed sanction is merely an attempt to gain a litigation advantage in light of the recent refutation of the complaint's CW statements by two of the four CWs."

"Taking CW3's and Jay Pomerantz's declarations together, the Court concludes that counsel did disclose the identities of CW2 and CW1 to CW3. CW3 states unequivocally that Mr. Pomerantz did so; counsel states merely that he does not recall revealing the names and does not believe he did so. However, the Court does not find that defense counsel's disclosure was a willful or blatant violation of its order. In addition, it does not consider defense counsel's statement about a deposition of CW3 to be a threat."

"Accordingly, the Court declines to make the requested contempt finding or to impose the drastic sanction proposed by plaintiff. Plaintiff's motion is DENIED."

You can read Crossen v. CV Therapeutics, issued August 10, 2005, at 2005 U.S. Dist. LEXIS 41396.

Nugget: "The Court hereby GRANTS plaintiff's motion to certify the class and appoint Crossen as lead plaintiff."