Leveling the Playing Field (Continued from page 9)
ucts liability action, one must consider that in most personal injury cases, Plain- tiff and Plaintiff ’s counsel know much more about the relevant facts in a case before suit is filed than the Defendant. In motor vehicle accident cases, and even in medical malpractice cases, the Plaintiff can usually obtain all of the factual infor- mation necessary to intelligently evaluate a case and select experts before filing suit. However, in products liability actions, the Plaintiff does not have this information advantage over the Defendant. To the contrary, the Plaintiff is usually at an in- formation disadvantage vis-a-vis the Defendant.
It is the products liability
Defendant who has designed, manufac- tured and marketed the product. It is the products liability Defendant whose own employees are experts with regard to the design, manufacture and safety issues which are involved at trial. It is the prod- uct liability Defendant which possesses all of the factual information upon which the case will ultimately hinge. Despite the increased efficacy of Plaintiffs’ informa- tion exchange groups, it will be a rare products liability case where Plaintiff’s counsel knows as much about the prod- uct pre-suit as the Defendant. This information disadvantage poses
problems to Plaintiff ’s counsel which can substantially interfere with the efficient administration of justice. Under all Fed- eral Court scheduling orders, it is the Plaintiff who must designate expert wit- nesses first. Although Plaintiff ’s counsel may have done an admirable job pre-suit in obtaining manufacturer’s documents from other sources, it is only through dis- covery that Plaintiff ’s counsel has an opportunity to obtain all relevant docu- ments. Both the production of these relevant documents by the Defendant, as well as the timing of the production of
the Defendant’s documents, can have a major impact upon a Plaintiff ’s case. If a Defendant does not produce critical docu- ments, the opinions of a Plaintiff ’s expert may be severely hampered. In addition, if the Defendant does not timely produce documents, Plaintiff’s expert may also render opinions which in light of later- produced documents would appear ill-conceived. Obviously, due to this in- formation disadvantage which the Plaintiff has in a products liability action, there is a strong incentive for a products liability Defendant to either not produce critical documents at all, or to produce the documents on a delayed basis after discovery is substantially complete, claim- ing that the critical documents have recently been found. Poole v. Textron was a products liabil- ity action in which the Plaintiff claimed serious injuries from an allegedly defec- tive golf cart. Magistrate Judge Gauvey addressed significant problems with the discovery responses of the Defendant, and imposed a heavy sanction upon defense counsel who had not complied with the discovery rules. Significantly, the mon- etary sanctions were assessed even though Magistrate Judge Gauvey did not find bad faith on the part of defense counsel. Es- sentially, what Magistrate Judge Gauvey found was a pattern of sharp tactics by defense counsel which delayed the pro- duction of critical information and documents until late in discovery. An analysis of the issues addressed by the Court is helpful. One of the areas which Magistrate
Judge Gauvey addressed was requests for admissions. Plaintiff submitted a series of detailed requests for admissions to the Defendant. With regard to 13 of the Defendant’s responses, the Plaintiff filed a motion for determination of the suffi- ciency of those responses. The Court determined that in 12 out of the 13 con- tested responses to requests for
admissions, the Defendant’s responses and objections lacked substantial justification, and attorneys’ fees and expenses were awarded.
The Court’s reasoning in assessing sanctions against the Defendant’s coun- sel is instructive. The Court first noted that with regards to Rule 36, “a party must either lodge an objection or an answer to a request, but cannot do both.” The Court further stated that failure to adhere to the Plain language of the statute requir- ing how an objection is lodged requires that the fact in question be admitted. The Court found that in almost every re- sponse, the Defendant impermissibly lodged an objection and answer. Further- more, the Court noted that when the Defendant filed an answer, “its complex- ity undermined the efficacy of the rule by creating disingenuous, hair-splitting dis- tinctions whose unarticulated goal is unfairly to burden an opposing party.” Magistrate Judge Gauvey’s ruling re-
garding requests for admissions is particularly helpful for Plaintiff’s coun- sel. When a Defendant impermissibly lodges an objection and an answer in re- sponse to a request for admission, or when a Defendant attempts to create “hair-split- ting distinctions,” the Court will come to the aid of the party requesting the admis- sions. Magistrate Judge Gauvey devoted a large portion of her opinion to the Defendant’s lack of diligence in promptly providing requested information and documents. The Court emphasized that the Defendant’s counsel under Rule 26(g) had an obligation to require that his cli- ent search in all relevant departments of the Defendant corporation for the re- quested information and documents. The Court also determined that the docu- ments in the possession, custody or control of the Defendant included those documents that were in the possession of prior outside counsel and insurance com- panies of the Defendant.
Some of the
areas where the Defendant and its coun- sel lacked diligence in providing key requested information included prior liti- gation involving the product at issue, testing involving the product at issue, and existence of an exemplar product. What was also significant in this regard was that the Court did not allow outside defense counsel to plead ignorance; outside de- fense counsel, as well as the Defendant, were jointly obligated to make efforts for a diligent search for the requested infor- mation.
The Court gave several specific ex- amples of improper discovery tactics by
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