Trial Magazine

In every products liability case, you will encounter certain hurdles to obtaining electronically stored information (ESI) during discovery, such as uncooperative defense counsel. Here are some ways to make the process go more smoothly.

Request and narrow custodians early. Your initial discovery demands should include requests geared toward learning which employees were involved in the product’s development, testing, regulatory approval, and marketing. Obtain each employee’s job title and dates of employment, and use this information to ­prioritize production of their custodian files and related ­databases. You now have a roster for your first set of depositions.

Each time ESI is produced, see whether it complies with the protocol, and address any deficiencies immediately.

Establish an ESI protocol. Before document production begins, establish an ESI protocol and file it with the court. Be as thorough and precise as possible; use available forms and protocols from prior similar cases as your guide. Having a protocol will allow you to hold defendants accountable for noncompliance. Each time ESI is produced, see whether it complies with the protocol, and address any deficiencies immediately. If defendants are unwilling to establish an ESI protocol, address the issue with the court or special master.

Always obtain metadata. Producing ESI without ­metadata is common, but this typically violates ESI protocols. Metadata is crucial—it provides the document’s custodian, if not already discernable, which gives you the proper witness for foundation. It also supplies the document date, which allows you to identify when a defendant first knew of an issue with the product. Sometimes design and development documents show that the product had flaws early on that the defendant chose to ignore. The same is true of early sales and marketing documents, such as emails and memos. And if the document relates to a potential safer alternative, the document date can help prove that an alternative was available when the defective product was being manufactured and distributed.

ESI can be daunting, but when broken down into manageable pieces, it can be overwhelmingly helpful.

Calle Mendenhall is an attorney at Freese & Goss in ­Birmingham, Ala. She can be reached at calle@freeseandgoss.com.