Document Policy Can Help In Litigation

Documents. Documents. Documents. Lawyers are drowned in documents while handling many types of cases, but especially in products liability cases. Depending on the type of documents related to the case and what they say, documents may make, or break, a case. As a general rule, plaintiffs’ attorneys want to get their hands on as many documents from the manufacturer as possible, hoping to find a smoking gun that will inflame the jury and lead to punitive damages. If the aggressive pursuit of documents can’t accomplish that, at least it will provide the plaintiff’s expert with sufficient written information with which to reach and substantiate his conclusions.

On the other side of the case, conventional wisdom expects defense lawyers to resist producing documents during discovery. Objections run the gamut from overly broad, burdensome, and harassing through confidential and privileged all the way to duplicative or equally available to counsel and back. Frequently, however, fear is the real objection generating a tight-fisted attitude towards producing documents to the plaintiff. Every lawyer is familiar with the impact certain documents have had in high publicity cases, as when a memo by a manufacturer’s engineer callously discusses the cost of improving product safety versus risk of injury or loss of human life. The manufacturer’s attorney has plenty other reasons for wanting to keep most documents out of the plaintiff’s hands, including the prospect that these documents will be shared and come back to haunt the company in future cases.

However, manufacturing documents can actually help defend the company, especially one that knows how to create and maintain helpful documents. Every manufacturer should train its employees how to document safety concerns and their reasons for design and manufacturing decisions. Sometimes a manufacturer’s failure to create and/or retain documents can hurt its case by exposing the company to charges that it never considered the safety issues which led to the plaintiff’s accident and injury. Say a product is alleged to be defective, but the company performed rigorous testing of each unit before it was placed into the stream of commerce. As the defense attorney, you would hope that the company retained its records of those tests. Juries tend to believe testimony that is supported by documentary evidence. A responsible manufacturer which performs adequate safety analysis during the design and manufacturing process should create proper records so it can defend those processes in court if necessary.

Besides internal documents concerning testing or safety, plaintiffs are also interested in obtaining documents a manufacturer may be required to file with the FDA or other governmental organizations. Other documents which plaintiffs love include sales brochures or print advertisements since any puffing in that type of literature can be contrasted with the realities of the product.

Manufacturers want to be able to argue in their defense that there were no prior similar accidents involving the product. But evidence of this lack of claims must be documented. Without a reporting communication system whereby accidents are reported and accurately recorded for later use, the defense argument will be vulnerable to cross-examination and a potential motion to preclude such testimony.

What constitutes the best document management and production program for any manufacturer obviously varies greatly from product to product and industry to industry. In our next issue, we will suggest some document management ideas to make and retain helpful documents and to minimize the creation of harmful ones.

Until now we have stressed the importance of a proactive document management program in products liability litigation, and encouraged manufacturers to develop a comprehensive program for keeping records and maintaining documents. Since not all documents will be favorable to the manufacturer during litigation, any program must strive to reduce the creation of hurtful documents as well as fostering the production of useful ones.

The large verdicts we often read about on the front pages of our newspapers are the result of the award of punitive damages by angry juries reacting to companies which they perceive have wantonly disregarded the plaintiff’s safety. In such cases, usually the compensatory damages award is proportionately small in comparison to the punitive award. (Of course, the inflated punitive damage award is usually reduced or overturned subsequently by the trial judge or appellate court later, but that event gets reported at the back of the papers some time later, if at all.)

A document program must go far beyond merely deciding how long to retain documents. A program should create guidelines for what documents should even be created and what terminology should be used. The document retention policy is just a small portion of an overall document management program.

First and foremost, any program should encourage employees to bring to the attention of management any negative impressions concerning the manufacturing of the product. Employees should be instructed to whom to go with any concerns regarding issues that impact safety, and in what form to communicate those concerns. Better that the company learn of potential problems in this way than from a plaintiff’s expert, or worse yet, from 60 Minutes.

If records are kept of these internal notices concerning product safety, the manufacturer must be sure to address the issue raised. If the problem is not corrected, documentation should clearly show why it was not really a problem, or how the issue was considered and resolved, even if no changes were made. Imagine a plaintiff’s attorney getting hold of documents which show that the precise safety issue that caused his client’s injury was brought to the company’s attention, but seemingly the company ignored it. A manufacturer must respond to the issue in writing and attach that response to the related document. Copies of documents and unnecessary distribution should be minimized.

Whether or not changes are made in response to the notification, the issue and response should be well documented. Supervisors should be instructed to write reports with an eye towards potential use in litigation, where things can be quoted out of context. Document writers should avoid using legal jargon which they don’t understand and should avoid stating unsupported opinions. Adjectives can get a company into trouble as well. As opposed to stating something happens infrequently or a lot, objective numbers should be included.

Perhaps most importantly, documenters should avoid discussing product safety issues in terms of money or trade-offs. Those are the types of documents that cost companies money when the jury sees them. Sometimes just the fact that safety concerns were addressed by the manufacturer is enough to avoid punitive damages even when damages compensating the plaintiff cannot be.

What records should be created and maintained? That depends largely on the company and the products it manufactures. Industries must also abide by federal legal requirements concerning reporting, creating and retaining documents. In addition to any federal requirements concerning document creation and retention, each state where a manufacturer distributes its products may have its own regulations. Voluntary standards should also be considered when creating a program. Many products which allow for certification carry with that documentary requirements. Once a program has been created, compliance should be audited to show that the company is serious about the program.

Lastly, most documents should be retained for a significant amount of time. The product a company manufactures today could be involved in litigation decades from now. If documents are destroyed too soon, the benefits of the plan are reduced and the company may be exposed to the accusation that it purposely destroyed documents to avoid damage to its case.

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