August 20, 2017 Practice Points

Confronting and Limiting the Impact of “Bad” Company Documents

By Janelle L. Davis

One of the most difficult pieces of evidence trial lawyers must deal with is often a company's own "bad" documents. In an age when "deleted" documents are never truly gone and when emails are routinely sent in lieu of face-to-face conversations or phone calls, "bad" company documents are readily accessible for those willing to take the time to find them. In the mass tort world those most eager are often plaintiffs' attorneys. Skilled plaintiffs' attorneys can use one "bad" company document to weave a simple, yet compelling narrative. Thus, it is imperative to understand this issue and take steps necessary to address any 'bad" company documents that may exist.

"Bad" company documents generally happen in non-nefarious circumstances: A marketing employee prepares a tongue-in-cheek presentation on top reasons to sell a new medication or medical device and includes "college for my kids isn't getting any cheaper." A regulatory employee refers to a list of adverse events as an "injury" or "death" list. A product design engineer refers to a new product as one that "fixes the kinks" in an existing product. These documents seem innocent at the time and they often never see the inside of a courtroom. But in some instances, years down the road when litigation develops, they can create problems.

These documents can take a variety of forms, but the most common issues include expressing emotion; making jokes; and criticizing existing products. Speculating, debating, or offering preliminary opinions about a product's safety also frequently occur. These types of documents are almost always taken out of context and they are very easily manipulated by talented advocates. Another common type of "bad" document is one that mixes safety with money. This could be a document that speculates about the impact of potential actions on the product's sales and/or inventory.

How can companies reduce (or hopefully, eliminate) the concerns raised by the creation of such documents? Ideally, a company takes affirmative steps to train its employees on the issue of document creation in order to minimize the existence of "bad" company documents in the first place. For instance, employees should be educated on how these documents can be used against companies in litigation. Once the employee understands the issue, they should be trained to avoid any superfluous commentary when emailing coworkers. A simple "give me a call to discuss" or "FYI" is preferable to a sarcastic comment. In today's age of instant communication and technology, we sometimes forget there are methods of communication besides email. It behooves companies to remind employees to use non-written forms.

Even with the best company training programs and the most conscientious employees, "bad" documents still exist. When faced with these types of documents at trial, companies have a few tools at their disposal.

First, the rule that precluding evidence of subsequent remedial measures to show negligence can sometimes be used. Second, "bad" documents are often irrelevant to the liability and damages issues involved in the trial. Even if they have some marginal relevance, the documents may still be excluded due to the danger of unfair prejudice, confusion of the issues, and waste of time. Third, trial counsel should consider other evidentiary objections that may apply to exclude the documents, including hearsay and authentication. Expert witness testimony about the document's meaning or the company's intent may also be excluded as improper.

If all objections are unsuccessful and the document is shown to the jury, counsel for the company should confront the document head-on. Running from it will only make the situation worse. There are a variety of ways to minimize the impact, including preparing company witnesses, discussing the documents during opening statement, and contextualizing the documents. The author could be asked to explain the true meaning and context of the document. If the author is not available to testify, the company should identify another witness who can contextualize the document in other ways. Documents created contemporaneously can also be used to place the "bad" document in context.

Generally, "bad" company documents are only marginally relevant to the issues in a given case, but preventing their use at trial can be difficult. Often at least one "bad" document will be shown to the jury and will become a key element of the plaintiff's evidence. Defense counsel must use every tool at their disposal to contextualize the document and minimize its impact.

Janelle L. Davis is a partner at Thompson & Knight LLP in Dallas, Texas.

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