ABSTRACT
A fundamental requirement for success in the products case is the procurement and comprehension of internal company documentation reflecting knowledge of defect, feasible alternative designs, and irresponsible management decisions. All such materials are studied in light of the defendant company’s relevant scientific knowledge, whether it be centered in engineering, chemistry, pharmacology, or, in this new century, bioengineering, bioinformatics, or other offshoots of genetics. There are several complex investigative and legal issues facing the product litigator with respect to this subject:
• How to determine the type of company documents are generally contained in corporate archives
• Which of those are available in discovery • How to both identify and locate defendant’s documents during dis-
covery • How to enforce discovery rights with respect to such documents • How to organize and analyze them once plaintiff has received them • How to rate the investigative or legal significance of any one document
with an eye toward including it in the documentary component of plaintiff ’s case-in-chief
The defendant has no legal obligation to voluntarily identify and hand over all “relevant” documentation conveniently packaged and arranged chronologically by document type. The burden is on plaintiff ’s counsel to find
out what he needs, determine how to get it, and to make sense of it once in his possession. Virtually no attention has been paid in the literature to this central aspect of product liability preparation.
