USA – LOUISIANA Law and Practice Contributed by: Allan Kanner, Conlee Whiteley and Cynthia St. Amant, Kanner & Whiteley, LLC
causation, injury or exposure by a date certain – or face dismissal. Lone Pine orders can be issued prior to discovery to define the scope or later in litigation in furtherance of settlement negotiations. 3.9 Funding and Costs In Louisiana, class actions are typically funded by the attorneys bringing the action, who pays for all costs in the case. These cases are brought on a contingency- fee contract basis with the representative clients, and the clients typically have no obligation to reimburse counsel. In exchange, a client will be required to pay a percentage of the recovery to counsel, the amount of which may depend on the stage of the case, as well as the case costs expended in the case. In the class action context, after a successful class verdict or class settlement, the attorneys who have been appointed by the court to represent the class can apply for the recovery of reasonable fees and costs from the common fund created by their efforts. These fees and costs must be approved by the court after notice has been given to the class. Litigation funding is increasingly available throughout the USA, and with that increase has come regulation. Louisiana has recently enacted laws that limit litigation funding and require disclosure of information about such funding to the Louisiana Attorney General. Given the recent legislative developments, these laws and their application should be thoroughly reviewed prior to entering into any agreement that involves litigation Full discovery is allowed in class actions in Louisi- ana, as elsewhere in the USA, and pre-certification discovery (class discovery) and post-certification dis- covery (merits discovery) are specifically provided for in Louisiana class actions under Article 592. However, given the overlap between class and merits discovery, where to draw the line can be a crucial issue, and it is often left to the court to resolve. Louisiana permits a broad scope of discovery. Specifi- cally, La. Code C.C.P. Article 1422 permits parties to obtain any non-privileged information relevant to the subject matter of the action, or that appears reason- ably calculated to lead to the discovery of admissible funding of a civil action in Louisiana. 3.10 Disclosure and Privilege
evidence. Trial courts accordingly have expansive dis- cretion in regulating discovery and may limit or tailor discovery through protective orders to prevent undue burden or oppression. In general, Louisiana’s discov- ery framework mirrors federal practice but does not mandate automatic pretrial disclosures and continues to employ an expansive relevancy standard. In class actions, Article 592 ensures the parties a reasonable opportunity to obtain discovery on class certification issues (including expert evidence) before the certifica- tion hearing. Experts are frequently used at the class certification stage to opine on whether the requirements for class certification can be met. Those experts are usually required to provide pre-trial and trial disclosures or expert reports. The experts can be deposed and can be subject to a pre-certification hearing to test their qualifications and methodologies in the same manner as they would be prior to trial. If qualified, their testi- mony can be used to support or oppose class certi- fication. If the class is certified and set for trial, addi- tional expert reports may be served, experts deposed, and qualification and methodologies tested to deter- mine whether they may testify to a jury on the merits of the case at trial, with each proceeding governed by Louisiana civil procedure rules and evidentiary rules. Typical rules of attorney-client privilege apply to the information produced in discovery, with strong pro- tections given to confidences shared with the attor- ney and to the attorney’s work product. While expert reports and extensive documentation can be required of an expert, absent exceptional circumstances a draft expert report does not have to be produced to the opposing party. However, facts and data upon which the expert relied or considered, including information coming from counsel or whether experts considered alternative approaches, are fair game for inquiry of the expert by the opposing party. 3.11 Remedies With few exceptions, Louisiana law permits class action plaintiffs to seek the full array of remedies that would be available in individual suits. This includes monetary damages to compensate for injuries or losses suffered by class members. Class actions can aggregate claims for general and special damages
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