Further <i>Zubulake</i> Ruling
December 01, 2003
In the context of electronic discovery but with implications beyond that setting, Judge Shira Scheindlin issued a further ruling in the hotly contested <i>Zubulake v. UBS Warburg</i> litigation outlining a defendant's obligation to preserve discovery following notice of a possible litigation. 2003 WL 22410619 (S.D.N.Y. 10/22/03) (<i>Zubulake IV</i>). In doing so, Judge Scheindlin has once again mapped the landscape and advanced the jurisprudence relating to the preservation, production, and payment of the costs of electronic discovery.
What Not to Do in a Hostile Work Environment Case
December 01, 2003
A recent decision, <i>Boggs v. Die Fliedermaus, d/b/a Le Bar Bat</i>, 2003 WL 22299315 (S.D.N.Y. 10/07/03) (Sweet, D. J.), offers many lessons for employers about what to do, and not to do, to position themselves for a successful summary judgment motion in a hostile work environment case.
What To Do When 'Strict' Means 'Strict'
December 01, 2003
It is well known that the doctrine of strict liability imposes responsibility upon manufacturers without regard to their fault or the degree of care they may have exercised in designing their products. Yet, in some jurisdictions the law of strict liability is stricter than in others, and courts in these "strict-strict liability" jurisdictions may prohibit the employment of certain common defenses to product liability claims. Manufacturers that find themselves on the defense in such jurisdictions may face the unexpected and initially unpleasant news that the trial on the horizon really will be about the product, the whole product and nothing but the product, and that the sole question for the jury may be "can someone given 20/20 hindsight fathom a plausible way to make this product safer?" Such manufacturers will often find that what they were hoping to rely upon for the cornerstone of their defense — explaining who, what, where, when, why and how from the company's perspective — is not only irrelevant but also inadmissible at trial.
Service Provides Useful Features for E-Discovery
December 01, 2003
Continuing the trend of informing readers about helpful online services (See October <i>PLLS</i> Online for a description of CourtLink and November <i>PLLS</i> Online for EDOCKET), this month's column describes an electronic discovery service that may be useful in complicated product liability litigation. We are not recommending the service; we merely inform our readers of its existence and its claims.
Practice Tip: Prepare for Cross and Direct Early and Often
December 01, 2003
The few months before trial of a complex products liability case is without a doubt the busiest time in the life cycle of the case. Typically this time is spent working with witnesses, drafting trial briefs and trial motions, preparing opening statements, jury questions, and demonstrative exhibits, and drafting direct and cross examinations of the witnesses you anticipate will testify. The latter of these critical pretrial preparations can take a substantial amount of time, especially when preparing cross or direct examination for expert witnesses where the science in support of — or in contravention of — the opinions expressed is complex. Although it's not wise to begin to prepare cross or direct in the frenzied days or weeks before trial, it is often difficult to focus on trial examination of a specific witness earlier in the litigation.
Case Notes
December 01, 2003
Highlights of the latest product liability cases from around the country.
Analyzing Manufacturers' Duties with Respect to Post-Sale Safety Improvements
December 01, 2003
According to Professors Henderson and Twerksi, the Reporters for the Restatement (Third) of Torts: Products Liability, "... post-sale warnings are probably the most expansive area in the law of products liability." The authors go on to say that "[I]f you want to see people turn ashen white quickly, we recommend that you gather representatives from industry in a room and then flash the words 'post-sale warnings' on a screen." They further describe post-sale warnings as "timeless" and a "monster duty."
Compliance Risk Assessment
December 01, 2003
The Report of the Ad Hoc Advisory Group on the Organizational Sentencing Guidelines asks the Sentencing Commission to adopt a new guideline defining "effective program to prevent and detect violations of law" as used in USSG ' 82C.5(f). The Report recommends that the definition include conducting ongoing risk assessments as one of its elements. The assessments would have two aspects: 1) a determination of "the scope and nature of the risks of violations of law associated with an organization's activities," and 2) use of the results of the assessments to "influence the design and implementation of a broad range of features of an effective [compliance] program."
