Tuesday, June 17, 2008

Will Technology Increasingly Favor Plaintiffs?

Folks on our side of the "v" complain about "asymmetrical discovery."

(Actually, the two of us complain about everything. But even fair-minded folks on our side of the "v" complain about asymmetrical discovery.)

In product liability cases, the plaintiff typically has to produce a few hundred (or few thousand) pages of medical, educational, military, insurance, and employment records. That's it.

Not so for the defense. The plaintiff may request production of millions of pages of documents related to the development and marketing of complex products over the course of decades. And, in our new e-age, the plaintiff will also request production of a gazillabyte of e-documents.

The defendant is forced to spend hundreds of thousands of dollars (or more) identifying, retaining, and reviewing for relevance and privilege the avalanche of documents that it must produce.

That's bad enough.

But wait! It gets worse!

Or, at least, we fear that it will get worse.

We fear that search technology will increasingly permit plaintiffs to identify with relative ease the specific information that they need, but the technology will be far less helpful to defendants trying to separate the wheat from the chaffe.


Famed plaintiffs' antitrust lawyer (and one-time mayor of San Francisco) Joe Alioto used to say of his strategy that, "I take the highways. I let the defense lawyers take the by-ways and cul-de-sacs." (We know; we know. It's culs-de-sac. But we swear that's not what Alioto said.)

He had a point. The plaintiff's theme at trial is typically simple. "Follow the money" or "Who knew what when?" or "This company put profits before safety."

But, whatever it is, it will be straightforward, and it won't be too hard to find the documents needed to take testimony from a witness at deposition or to cross-examine a witness at trial. A computer search for all mentions of a specific adverse reaction, or for all e-mails to or from a particular person, is likely to yield most of the critical information.

The defense lawyer's target is more amorphous. Before he defends a witness at deposition, the defense lawyer must learn not only what the witness knows (which you might find in the witness's records), but also what the witness didn't know at various times -- and might be accused, under oath, of ignoring.

When a plaintiff identifies that one "bad e-mail," the defendant must put the e-mail in context. Finding the e-mail isn't hard -- a computer search could turn it up -- but placing the e-mail in context can be a bear, requiring intuition that computers lack.

Before a deposition, every defense lawyer frets about what he doesn't know -- and it's tough to frame a computer search that will unearth that ignorance.

As we hear about (and evaluate) systems for searching documents, it seems that life keeps getting worse for the defense. We've seen gadgets that will take a requested search, review a ton of documents, and then identify a small subset of documents in their likely order of importance. But all of those contraptions assume that you know what you're looking for; they help you find a needle in a haystack.

As defense lawyers, we're often trying to discern the shape of the haystack, and computers simply aren't much help.

As the volume of e-documents that companies generate increases exponentially, we fear that search tools will increasingly be of one-sided utility, saving plaintiffs' counsel an awful lot of time and money, but not providing an equal saving to the defense.

Time, we suppose, will tell.

For the present, we'll just fret about what the future may bring.


Henry Greenspan said...

Guys - Sorry to go somewhat off topic, but I am trying to get clarification. I've raised the question here before without a response, but hope springs eternal (especially in the spring).

As you envision preemption - in both drugs and devices - what is the potential role of felony fraud in a company's dealings with the FDA, either before approval or following?

Let's assume FDA/DOJ pursues a case and felony fraud is successfully prosecuted on an issue materially relevant to a drug's approval and/or label.

As you view it, would that bear in any way on whether a company becomes liable to a private damages case or solely to whatever penalties, if any, resulted directly from the government's fraud prosecution? (As I understand the FDA/DOJ brief in Kent, there would be no "gate" thus provided to private damage claims.)

Is there anything in the Riegel decision that bears on this?

I thank you in advance for any clarification you can provide.

Beck/Herrmann said...

Different people have different reactions to your question, depending in part on who they represent.

Some folks believe that, if a company is found guilty of fraud, then it remains the FDA's decision to seek an appropriate remedy. Lawsuits by private plaintiffs should still be prohibited because, if an avalanche of private lawsuits were permitted, the ultimate punishment might no longer fit the crime.

Other folks have suggested that companies should lose the benefit of preemption if they are found guilty of having defrauded the FDA.

We can't really say much more than that. We hope that helps.

Craig said...

As someone on the other side of the "v", I can tell you sitting in a room looking for that "needle in the haystack" is miserable. For whatever reason, big pharma tends to produce 10 copies of the same docs and with several people pouring over these docs, many times you don't know its already been looked at 4 other times by 4 other people. Agreed that technology is starting to make this process better, but it still requires massive amounts of time by many lawyers to review and review docs produced.

As to the review of docs by corp reps, I can tell you my experience has been that defense lawyers tend to not show their corporate reps the docs that have been produced so that you typically get the response.."i don't know" or "i don't remember". Having been a defense lawyer for many years before coming over to the "light" I'd spend days prepping my witnesses with every possible doc they might see. Over the past 7 years being a plaintiff's lawyer doing pharm work, I have typically run into corp reps who aren't shown anything in effort to shine as little light on the issues as possible. Just my two cents.

Henry Greenspan said...

Thank you. I appreciate your answer and the reasons why you do not say more.

As you know, a good many people _assume_ that proven felony fraud would open the door to potential liability because preemption seems so patently unjust otherwise. At the recent Congressional Oversight Committee hearings, even pro-preemption Congresspeople assumed this was the case.

But, as you suggest, that is not the view of many, including the current FDA/DOJ (reiterated in Kent)) and, as you suggest, not the view of those who represent the current pro-preemption position.

Once again, I am grateful for your response. In whatever context, it is important that there is as little ambiguity as possible about this question since it is at the heart of assessing preemption as policy.