Aloha from the beautiful city of Honolulu, Hawaii. I have been to some very interesting seminars on a variety of issues and topics. I’ve met some very interesting people and have met several other colleagues who have shared their experiences on such timely topics as electronic discovery and using graphics in the courtroom to persuade. Listening to the presenters reiterated the importance of electronic evidence and technology in corporate America and in litigation. When the amount in controversy justifies the expense, electronic discovery and graphics presentations play an ever-increasing and important role in what we as litigation attorneys do.
I have said in the past that business communication now involves millions of documents exchanged electronically. Gone are the days when lawyers can review documents in a warehouse to piece together a story about what went wrong with a product design and placement into the stream of commerce. Instead, product engineers all over increasingly share information and collaborate electronically. Handwritten notes and memos of the past have been replaced by electronic mail. In the past, one standard of care expert could evaluate whether a product design fell below the industry standard of care. Now with the advent of technology, in addition to a standard of care expert, attorneys should consider working with two other technology experts. The standard of care expert identifies what information is relevant. A technology expert can then work with counsel to identify where this relevant information has been stored. For example, is the information available on a server, backup tapes, or elsewhere? After data retrieval, what happens next? A database expert may be appropriate to organize this information. Product liability cases can involve milliions of pages of electronic data which if placed in a database format can be easily accessible. Therefore, juries need only see a series of key documents called up quickly and graphically. I saw one graphics presenter who put together a sample powerpoint presentation piecing together key documents to show how a company overlooked or ignored the dangers of its product. When appropriate, graphical presentations of key evidence can be a highly effective tool during trial.
Even after disclosure of electronic data and placement in a database, counsel and experts must then analyze that data to confirm its accuracy. The Associated Press published an article providing examples of missing data exposed through the use of technology expertise. Digital data tags or metadata allowed the New England Journal of Medicine to show that when:
Merck & Co. had deleted study data about Vioxx and heart attacks, the pharmaceutical giant joined a long line of organizations bitten by information lurking in electronic files.
Juries should be able to consider this type of information in a product liability lawsuit to determine whether a corporation should be held accountable for selling and manufacturing an unsafe product. Of course, obtaining and assembling digital evidence can be extremely expensive (in the hundreds of thousands of dollars or more). Before embarking on such an effort to obtain this type of informaiton, lawyers and our clients should evaluate the costs and the possible benefits to determine whether these expenses are appropriate. When appropriate, electronic information can provide key information on product defects and dangers and can assist jurors to make a decision to hold a corporation accountable for its actions. Stay tuned for more information from beautiful Honolulu.