Extract from Kelly Twigger’s article “The $3 Million Lesson in What Not to Do in Discovery”
What happens when discovery misconduct meets a high-stakes cancer detection technology dispute? A $292.5 million verdict, nearly $3 million in discovery sanctions, and potential disciplinary action against attorneys.
The recent Guardant Health v. Natera litigation serves as a reminder of the devastating consequences of discovery misrepresentations and improper ESI management. At its core, this case involved competing technologies designed to detect minimal residual disease in colorectal cancer patients – a critical advancement that helps determine whether patients need to undergo grueling chemotherapy after initial treatment.
What began as false advertising claims spiraled into a discovery nightmare when Natera’s expert witness, Dr. Hochster, failed to disclose his communications about a crucial clinical trial. Despite having early access to negative study results regarding Guardant’s product, both Dr. Hochster and Natera’s counsel repeatedly claimed ignorance when questioned. The truth only emerged when Guardant subpoenaed Rutgers University directly, uncovering dozens of emails showing the expert’s knowledge – including communications where he sent the embargoed study results directly to Natera’s attorneys months before they claimed ignorance to the court.
The judge’s frustration leaps from the page in these decisions, highlighting statements from counsel in bold text and finding they “knowingly and deliberately misled the court.” The sanctions were severe: complete exclusion of the clinical trial evidence, nearly $3 million in attorney fees, and appointment of a special master to determine potential disciplinary measures and state bar referrals for the attorneys involved.
