Help may be on the way for victims who want to repair their home while their litigation is pending

Judge Fallon in the MDL for Chinese Drywall has entered preservation of evidence order – this can help victims who may want to repair their home while their litigation is pending.

Last week a very important order was issued by Judge Fallon in the Multi District Litigation that is pending in Federal Court in New Orleans concerning Chinese drywall.  This order outlines certain criteria and procedures that homeowners are supposed to follow so that they can properly preserve the evidence in any pending Chinese drywall case.  If this order is followed strictly, then the homeowner can repair their home while the case is still pending in the Court system.  A copy of this order can be downloaded by clicking here.

It must be noted that this order still has some limitations.  If your case is pending in state court, then this order would be considered persuasive but not binding.  In order for this order to be considered binding in state Court, the attorney for the victim must motion the state court to adopt this order specifically in that particular case.  If this is done, then, and only then, can the homeowner repair and not worry that the evidence is not being properly preserved.  Remember, until this order is adopted by the state Court in your particular case, this order may be the gold standard, but each state Court has the authority to adopt its own rules concerning the preservation of evidence.  If the state Court adopts additional or different requirements, then that is what would need to be followed.  In the end, if you do not have a specific order that is binding in your case, I would not remediate.

In Miami-Dade County, the Plaintiff’s steering committee is attempting to have this order adopted by Judge Farina and this issue will be addressed November 6, 2009.  If Judge Farina enters an order in Miami-Dade County adopting this order, then all victims in Dade County can remediate their homes, so long as they preserve the evidence in accordance with this order.  However, even in Miami-Dade county you are not protected until such an order has been entered.  This will not be before November 6, 2009.