“Avoiding Mass Torts: Pre-Litigation Counseling” — Doing Good is Good, Hiding Evidence is Bad

Beck and Herrmann at Drug and Device Law are mostly right:

What, our reader asked, should companies do to minimize the risk that they become embroiled in a mass tort?

Ha!

There’s an old political cartoon, maybe from The New Yorker, where a man is strolling down a city street. The caption reads: "Exercises regularly. Eats right. Doesn’t smoke. Doesn’t drink. Has regular check-ups." In the cartoon itself, you see that a safe has fallen out of a window and is about do this poor fellow in.

Do everything right. Obey the law. … Comply with industry standards. … Avoid [the need for] recalls.

All well and good: want to avoid liability? Don’t cause others harm through a breach in the standard of care.

I’m not so hot on the second part of their advice:

Have a corporate communications policy that instructs employees to communicate only facts — not unsupported opinions or snide comments — in e-mails. …

Draft a document retention policy, and then enforce it. Preserve what you need, and eliminate what’s unnecessary.

Unless those policies manage to eliminate ‘smoking gun’ documents — which I doubt, given how a ‘gun’ is normally made ‘smoking’ by a party failing to "do everything right" — then they won’t reduce the frequency of litigation or size of liability, they’ll just create gaps in the documentary record. That’s a problem for defendants for two reasons:

First, it may enable plaintiff’s lawyers like me to fill those gaps with whatever I think was there. Sometimes that happens by way of circumstantial evidence. Sometimes — and this situation can be much worse for defendants — the absence of documentary evidence leaves the defendant’s deposition and trial testimony ungrounded, allowing me to set and spring traps for deceptive witnesses, walking them where they don’t want to go and making them look like liars when they do it.

Second, I’ll get a copy of those communications and document retention policies in discovery, and I will use them to show that the company actually established a policy to discourage employees from recording their own opinions. Add that to the point above and, well, you might have yourself a recipe for disaster. Fact is, whenever there are gaps in the documentary record, it increases the importance of witness credibility. If, by design, your company didn’t keep a thorough record and I reveal one of your employees to have been less than candid, then you’re toast.

Point is (and this is, I believe, Beck and Herrmann’s main point): there’s no panacea for litigation/liability avoidance. If you did something wrong or look like you did something wrong, you increase the likelihood of getting sued.

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