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Practice Tip: Use the Internet to Obtain Old or Hard-to-Obtain Evidence
Previous Practice Tips have discussed the usefulness of the Internet in locating expert witnesses and in researching medical issues present in your product liability case. (See February 2002 Practice Tip 'Search the Internet for Medical Experts' and March 2002 Practice Tip 'Make Use of Internet Medical Sites'). Here is yet another way to use the Internet to your advantage in product liability litigation: Use it to locate and obtain old or otherwise difficult-to-obtain physical and documentary evidence.
eBay, as most people are aware, is the online auction site where Internet users can obtain virtually any item, any day of the week and at any hour of the day. Believe it or not, it is being used more and more to obtain physical evidence for use in litigation. For instance, asbestos plaintiffs' lawyers reportedly have been using eBay to purchase asbestos-containing products and industrial manuals dating back to the 1950s.
If you are involved in litigation involving an older product, eBay ' or any of its auction-site competitors ' can be used to obtain old samples, industrial and shop manuals, parts, advertising, packaging materials, and even labels or other warnings relating to the subject product or to competitors' products marketed at the same time. This physical evidence, which, due to its dated nature, may be difficult to obtain from either your client or from your opponent in discovery, may provide you with useful information relating to defenses and arguments made during the course of the litigation. For example, an old product manual or an item with a product label can provide evidence relating to the state of the art, to the features and warnings distributed by similar products at the same time, to the presence of and nature of warnings, and/or even to the absence of warnings. And of course, being able to show the jury the item in dispute can be of significant value.
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