Iowa Supreme Court Gives Canadian Plaintiffs Access to Massive Discovery Record in Microsoft Litigation

The Iowa Supreme Court today affirmed a ruling by Polk County District Court Judge Scott D. Rosenberg that allows the plaintiffs in indirect purchaser actions against Microsoft Corporation, which are pending in British Columbia, Ontario and Quebec, to obtain access to the massive discovery record that had been collected and organized by the plaintiffs in Comes v. Microsoft Corp., the Iowa indirect purchaser action against Microsoft that went to trial in November 2006.  Today’s ruling appears to be the first time a state supreme court has weighed in on cross-border sharing of discovery.  

Discovery in various state and federal lawsuits against Microsoft had been coordinated for years. The plaintiffs in Iowa amassed millions of pages of discovery, which was subject to a protective order entered by the trial court. In September 2007, the plaintiffs in the Canadian indirect purchaser actions against Microsoft intervened in the Iowa proceeding to seek modification of the protective order and obtain access to that discovery. On December 3, 2007, the district court granted the Canadian plaintiffs’ motion, and Microsoft appealed.

The Iowa Supreme Court held that any interest Microsoft may have in the confidentiality of documents and other discovery produced in the United States was adequately protected by giving the Canadian plaintiffs access to those materials subject to the terms and conditions of the Iowa protective order. Sharing of discovery among the plaintiffs in various lawsuits in the United States had not harmed Microsoft’s confidentiality interests, and the Court concluded that there was no reason to presume that the same would not be the case if those materials were shared with the Canadian plaintiffs.

The Iowa Supreme Court was also persuaded by the “overwhelming waste of private and judicial resources that would be avoided if the Canadian plaintiffs were allowed access to the Iowa discovery. . . .”   Noting that the plaintiffs in Iowa had been able to conserve resources though coordination of discovery with other the plaintiffs in other state and federal proceedings, the Court concluded: “It would be hypocritical and unreasonable if, after realizing the benefits of a shared discovery process, Iowa courts were to deny the same benefits to courts in British Columbia, Ontario, and Quebec.”

Richard Hagstrom, of Zelle Hofmann, served as co-lead counsel for the Iowa indirect purchaser plaintiffs and actively supported efforts of the Canadian plaintiffs to obtain access to the Iowa materials. Zelle Hofmann attorneys were key contributors to the efforts that resulted in this important decision.