Document Discovery and Evidence Preservation

Educational Disclaimer: This article provides educational information. It is not legal advice and does not create an attorney-client relationship. Consult with a qualified attorney regarding your specific situation.

Why Document Discovery Matters

Document discovery in mass tort litigation represents one of the most resource-intensive, time-consuming, and ultimately consequential aspects of pretrial proceedings. The scale of document production in major mass torts is enormous, with defendants producing tens of millions of pages revealing decades of product development, safety testing, regulatory interactions, marketing decisions, and post-market surveillance. This documentary evidence provides the factual foundation for understanding what defendants knew about product risks, when they knew it, and what actions they took or failed to take.

Discovery Scope

Discovery scope in mass tort cases extends to all non-privileged information relevant to claims or defenses. In mass torts involving questions about product design, manufacturing, testing, marketing, and post-market surveillance, virtually all corporate documents touching these subjects are discoverable.

Electronic Discovery

Electronic discovery dominates modern mass tort document discovery, with electronic documents comprising the overwhelming majority of produced materials. Email systems, databases housing product testing data, electronic presentations used in marketing, regulatory submission files, and countless other digital information sources provide rich evidence about corporate knowledge and conduct.

Developing Document Requests

Strategic document request development requires careful thought about what evidence is needed, how requests should be structured to obtain it, and how to overcome anticipated resistance.

Product Development Documents

Product development documents reveal how products were designed, what alternatives were considered, what safety testing occurred, and what concerns arose during development. Discovery seeking research and development files, design history files, engineering analyses, and testing results provides evidence about whether companies adequately investigated safety before marketing.

Safety Testing Documents

Safety testing documents including preclinical studies, clinical trial records, and quality control data establish what companies knew about product performance and potential adverse effects. Testing protocols describe study designs, while testing results reveal findings including adverse events or concerning trends.

Regulatory Submission Documents

Regulatory submission documents including FDA applications or EPA registrations contain comprehensive safety information that companies provided to regulators. Agency correspondence reveals regulatory concerns and company responses. These regulatory documents are particularly valuable because companies compiled them knowing regulators would scrutinize submissions.

Post-Market Surveillance Documents

Post-market surveillance documents tracking product performance after commercialization reveal whether companies monitored safety, what problems emerged, and how companies responded. Adverse event databases provide evidence about injury frequencies. Risk management activities including recalls or design modifications demonstrate recognition of safety issues.

Document Production Processes

Document production involves complex processes for collecting, reviewing, and organizing massive document volumes.

Collection Processes

Collection processes gather documents from numerous sources including electronic systems, paper files, and individual custodians. Electronic collection uses tools to capture emails, databases, and shared drives while preserving metadata showing when documents were created and who authored them.

Processing

Processing involves deduplication, removing system files, and preparing documents for review. Deduplication eliminates multiple copies of identical documents, reducing review volume substantially. Text extraction converts documents to searchable formats.

Privilege Review

Privilege review identifies attorney-client communications and attorney work product that must be withheld from production. Attorney-client privilege protects confidential communications between lawyers and clients for legal advice purposes. Identifying privileged documents requires examining whether communications involve attorneys and occur in legal advice contexts.

Production Formats

Production formats determine how documents are delivered. Modern productions typically use industry-standard formats with extracted text, metadata, and unique identification numbers. Negotiating production formats before production begins ensures compatibility.

Document Repositories

Document repositories house produced materials in searchable databases accessible to all plaintiffs' counsel. In MDL proceedings, leadership typically establishes centralized repositories. Repository platforms provide advanced search capabilities. Training programs help attorneys use repositories effectively.

Corporate Depositions

Depositions of corporate representatives complement document discovery by providing testimony explaining documents, establishing authenticity, and eliciting admissions.

Corporate Representative Depositions

Corporate representative depositions require organizations to designate knowledgeable witnesses to testify about specified topics. Deposition notices describe topics about which testimony is sought, and corporations must prepare representatives knowledgeable about those topics. Topics typically include product development, safety testing, regulatory compliance, and marketing practices.

Document Selection for Deposition Use

Document selection for deposition use requires identifying key documents establishing critical facts, revealing inconsistencies, or impeaching defense positions. Hot documents showing corporate knowledge of problems or decisions to conceal information receive intensive deposition focus.

Contemporaneous Document Evidence

Contemporaneous document evidence often proves more credible than witness testimony. Documents created during relevant events without litigation contemplation reflect actual knowledge and thinking. When documents and testimony conflict, fact-finders typically credit documents over testimony.

Admissions

Admissions obtained during depositions create binding factual assertions that defendants cannot easily escape. When corporate representatives admit that documents show safety concerns or that warnings were inadequate, these admissions become case anchors.

Evidence Preservation and Spoliation

Evidence preservation obligations and spoliation consequences represent critical discovery dimensions.

Litigation Hold Implementation

Litigation hold implementation requires organizations to identify relevant employees and systems, communicate preservation obligations clearly, suspend routine destruction, and monitor compliance. Legal holds should issue when litigation is reasonably anticipated. Hold notices must clearly explain what must be preserved and why preservation matters.

Reasonable Preservation Scope

Reasonable preservation scope balances comprehensive preservation against practical limitations. Organizations need not preserve every conceivable document but must preserve materials reasonably likely to be relevant. Focusing preservation on key custodians and relevant time periods makes preservation manageable.

Adverse Inference Instructions

Adverse inference instructions permit juries to infer that destroyed evidence would have been unfavorable to parties who destroyed it. These instructions can be case-dispositive by allowing juries to presume critical facts against defendants who destroyed relevant documents.

Strategic Use of Discovery

Discovery materials provide leverage in settlement negotiations and form evidentiary foundations for trial presentations.

Hot Documents

Hot documents revealing particularly damaging evidence create settlement pressure on defendants. Internal emails showing executives knew about safety problems but concealed them provide devastating evidence. Documents revealing cost-benefit analyses where companies decided against safety improvements demonstrate conscious choices prioritizing profits over safety.

Discovery Timelines

Discovery timelines showing when defendants learned of problems and how long they delayed corrective action establish negligence. Timelines using dated documents to reconstruct knowledge evolution prove that companies knew about risks years before taking action.

Pattern Evidence

Pattern evidence from multiple documents showing consistent corporate practices proves that problematic conduct was systematic rather than isolated. Pattern evidence proving that companies routinely downplayed safety concerns or misled regulators creates strong cases.