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Stop automaker discovery abuse: from disorganized 'reading rooms' to massive electronic databases, auto manufacturers have devised creative ways to avoid document production. Don't let them overwhelm you. You can defeat their tactics.

Article Excerpt
Auto products cases are among the most complex and difficult to litigate. They are made even more challenging by the myriad abuses that manufacturers commit during discovery. By anticipating their transgressions, you can reduce the number of battles you must fight and greatly improve the likelihood of a successful outcome for your client.

Although most examples discussed here arose in automotive defect cases, defendants use abusive discovery tactics in a wide range of cases, including those involving tobacco, pharmaceuticals, medical devices, industrial equipment, and other products.

There are two primary ways to counter discovery abuse before it happens. First, you need to know specifically what to ask for and what documents or information should be disclosed in response. Networking with other attorneys who handle auto products cases is critical.

Second, once you know what you are looking for, you should request both general categories of documents and specific documents identified by subject, date, author, recipients, and/or verbatim content. The general requests are intended to secure full disclosure on the topic at issue, including documents that may not have been disclosed or produced in other cases. The specific requests signal to the manufacturer that you know what has been produced in previous litigation, which may encourage the defense to be more forthcoming in your case.

Of course, no matter how well you craft your requests, automakers are likely to commit discovery abuses. The following are some of the more common offenses.

Reading rooms

For years, manufacturers have attempted to meet their discovery obligations on particular topics by creating "reading rooms" in which they deposit hundreds of boxes containing hundreds of thousands--sometimes millions--of pages of material. The overwhelming majority of the documents are, not surprisingly, completely irrelevant in any particular case.

Defendants frequently justify the use of reading rooms on the basis of Federal Rule of Civil Procedure 33(d), which provides that "where the answer to an interrogatory may be derived or ascertained from the [responding party's] business records," that party can answer by making those records available for inspection.

Defendants also assert that reading rooms are appropriate under Rule 34, arguing that the rooms not only meet, but exceed, the manufacturer's duty to produce responsive documents. Defendants contend that the plaintiff benefits from this method of production because the rooms provide access to all requested documents and to every other document that might somehow be considered relevant.

However, both rules contain limitations that can be used to combat this "dump truck" response to discovery. Rule 33 (d) imposes two prerequisites for producing records in response to an interrogatory.

First, the responding party must specify the documents from which the information can be obtained with sufficient detail that the requesting party can locate and identify them. Second, even after being given the identity and location of responsive records, the discovering party's burden in finding the answers from those records should be no greater than it would be for the responding party. Rule 34(b) requires that the documents be "label[ed] ... to correspond with the categories in the request" and produced as they are "kept in the usual course of business."

The reading rooms rarely, if ever, conform to these rules. The racks and boxes of documents are...

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