The recent news that Johnson & Johnson has been ordered by a Texas jury to pay more than $1 billion to patients whose artificial hips had to be surgically removed was the latest attention-grabber in the world of product liability litigation. The verdict includes more than $30 million in actual damages for the six plaintiffs and more than $1 billion in punitive damages, the largest reported punitive award against a company in 2016.
The stakes are high for all involved in product liability matters, especially regarding properly managing the e-discovery process. A 2016 study by Gibson Dunn found 32 decisions in the first half of last year pertaining to failure to preserve evidence under Rule 37(e). Among those decisions, 13 granted sanctions against opposing counsel.
Of course, e-discovery is challenging for most large organizations and for all sorts of cases across the litigation spectrum. But product liability litigation brings with it some unique e-discovery challenges, risks and costs for litigants on both sides of the table, such as the following:
One side (typically the defense) often has a disproportionate amount of data collected and produced during discovery;
Matters often grow out of government investigations or shareholder suits. While the specific allegations may be different, much of the data may be the same; and
In some instances, the relevant data may be spread out over several decades, reside in different sources and exist in different formats with various outside counsel.
The challenge is to design a repeatable, responsive, and cost-effective e-discovery process that addresses these issues. The good news is that today’s technology tools in conjunction with best practices are here to help.
Challenges and Practice Tips
Sharing our collective experience as in-house counsel, outside counsel and an e-discovery service provider, here are some pieces of advice and suggested steps that organizations facing product liability litigation can take to contain and manage the e-discovery process.
1. Data Organization and Structure
A company facing product liability litigation often starts with one or two individual cases related to a product, so they may use different outside counsel for each matter and collect data separately. Data for these matters may be scattered on various databases with varying formats and levels of security.
It’s important to identify data sources, take receipt of all relevant data and then consolidate everything into a single, highly secure database accessible via the internet to both in-house and outside counsel. The best way to start is to create a core database.
With each product, there is science, development, testing, patents and prior art, marketing and sales data—all of which will be relevant to all plaintiffs. The “core” database should be organized in folders by type and custodian, with the precise number of levels and structure itself determined through collaboration with outside counsel. The benefit of this core is that while it can be static, your team can significantly reduce the learning curve for future users and matters, which translates into cost savings.
As you populate and manage the database, be sure to set up access restrictions based on each party’s permissions. Perform regular, in-depth audits of legacy tracking sheets to make sure that access is appropriate.
2. Unify Objective Coding
For many of these matters, data may not be coded consistently in the different databases residing with different outside counsel. For example, one might find multiple, redundant tags for the same concept or product component. Because of this, tag-based searches become extremely difficult, unreliable, and more time-consuming than necessary with the potential of inadvertently missing documents.
It’s essential to evaluate all tags and fields and identify likely redundant values. Next, consolidate all tags within a standardized set of fields, enabling easier and more accurate searching and identification of relevant documents.
Responsive, privilege and issue coding decisions can be scattered among various counsel and databases. When this happens, there are no opportunities to re-use or reference past work product from one matter to the next, thereby causing the client to pay to re-review documents.
The solution is to track coding decisions in each matter involving a certain product. At the matter conclusion, consolidate coding fields to allow for comparison and consistent re-use of coding calls among multiple matters moving forward.
3. Application of Filtering Criteria
Each product liability matter may have its own set of filtering criteria, including search terms and date restrictions. Factors affecting the criteria include how the data was collected, who collected the data and when, what discovery requests were addressed, and what the producing law firms determined were the criteria.
Production of privilege material is perhaps the number-one concern of clients. At the top of the list here is to determine the criteria upon which prior and current counsel withheld documents. Consistent treatment of such criteria in future productions can be assisted with today’s technology. The goal is to consolidate search terms in one location, including conversion of syntax for optimal coverage in a single database, which allows for a consistent and effective set of terms. This eliminates the need for redundant work.
4. Production Tracking/Validation
Sometimes corporate counsel have little information about what documents were produced in past matters, making any comparisons of past strategies or re-use of work product difficult. This presents a risk of not knowing what was produced in the past and creating additional costs associated with the re-review of identical data.
It’s important to create a series of object-based fields for matter productions (including both client and third-party data), thereby tracking production-related information (e.g. past bates numbers, production dates, parties of production, and other statistical type data). This system can be expanded to compare past and future productions across matters, as part of a pre-production validation check. This is where the “core” we discussed earlier can be identified and a master production group for each plaintiff matter can be developed.
5. Case Materials
Case materials (e.g. pleadings, correspondence, and transcripts) related to past, present and future matters are typically not consolidated in a single, easily accessible location. This causes both in-house and outside counsel to incur additional hours locating documents.
Work with your e-discovery team members to load case materials from the client’s internal drive to the central database. Then duplicate the exact existing folder structure to allow the case teams intuitive and familiar formats. You may also want to discuss a potential objective coding process, which would allow for easier searching and retrieval of specific documents.
Moreover, for many companies, there is no single location to share reference documents or often-changing tracking materials. If this applies to you, establish a Client Notes tab so that all litigation team members can efficiently upload and update general case materials (e.g. production trackers, which often change over the lifetime of a matter) in a single location. This process streamlines communication and reduces unnecessary outside counsel billable time.
6. Data Integrity
With some product liability matters, it can be difficult to identify issues (e.g., due to poor text quality, etc.) that were often spread across multiple databases. By consolidating data in one location/database, litigation professionals can identify and remediate issues comprehensively across all existing data. For example, you may want to introduce tags to identify documents with poor text quality and propose the possible use of text comparison tools to be consistent in the identification of duplicate or near duplicate documents. Another area where this is important is in foreign language documents as reviewers need a way to accurately identify documents that require foreign language treatment.
Product liability litigation often involves complex, high-stakes cases with the potential to have a material impact on a company’s bottom line. The best way to avoid all of the potential challenges explored in this article is to treat every matter like it will turn into a full-scale multi-district litigation. Be organized and consistent up-front and you will avoid many of these pitfalls.
By establishing and implementing a disciplined electronic evidence management process that can be applied across various jurisdictions and data formats, you can reduce e-discovery risks and costs at the same time.