Government reports: secret weapon for success.

Government reports, studies and records are valuable an virtually unlimited sources of information on issues related to product safety. Access to and discovery of this information are often crucial to successfully litigating a products liability case.

This article suggests where to find specific information helpful to your case, what discovery methods are available for obtaining the information, and how to make best use of it.

In your information search, keep in mind that corporate defendants routinely interact with government agencies on a number of issues. The interaction includes promulgation of safety regulations, compliance with environmental and/or safety regulations, and investigation of potential product defects.

Information about a company's interactions, with the government is especially useful if the defendant raises the defense of preemption or compliance with a governmental standard. The defendant's relationship to a regulatory agency may also disclose information showing bias of employees or of an expert witness who will testify at trial.(1)

Discovery of government reports may be accomplished both formally and informally. Often you will need to use both methods.

Sources of informal discovery and investigation are numerous. [See "Discovery Sources" on next page.] To tap these sources, you will find your power of observation useful. For example, simply examining a product itself yields a wealth of information - patent numbers; names of product evaluators such as Underwriters Laboratories (UL); unit model or serial numbers; listings of component parts; and standard numbers issued by the Consumer Product Safety Commission (CPSC), Food and Drug Administration (FDA), or National Highway Traffic Safety Administration (NHTSA). Often a preliminary examination of the product will reveal that a defendant made only its major component or that the "manufacturer" may, in fact, have been only an assembler.

You can also get help - often at little cost - from nongovernment organizations. The Attorneys Information Exchange Group and The Exchange, ATLA's computerized research and networking service, are particularly good sources for cases involving products similar to the one involved in your case. The Exchange also maintains a listing of lawyers who have handled litigation in diverse product areas.

WESTLAW and LEXIS searches provide information by product name and defendant for a fee. Through DIALOG Information Services, Inc. (available separately or through WESTLAW), you can check for investigation reports and product recalls that may be damaging to the corporation. ATLA's Law Reporter and Products Liability Law, Reporter, National Jury Verdicts Reviews & Analysis, and Bureau of National Affairs Product Safety & Liability Reporter all provide up-to-date information on products, studies, reports, and rules.

The CPSC will provide information on recalls, studies of products, and general safety information. NHTSA has voluminous records on crashworthiness, tests, barrier tests, motorcycle sidestand investigations, seat belt studies, air bag studies, utility vehicle rollover investigations, and many other safety issues.

Comparable studies and reports are also available from the FDA, the Occupational Health and Safety Administration (OSHA), and the U.S. Patent Office. Copies of patents and patent applications are especially useful because information contained in a defendant's statement of purpose may reveal a defendant's admission of a problem in the product that is the subject of the patent. Patents are recognized as providing state-of-the-art information and are potentially important in establishing a defendant's notice of danger and the feasibility of correcting the problem.

Once informal investigation has narrowed the areas of inquiry and provided you with specific investigative objectives, you can begin formal discovery.

Formal discovery of government documents can generally be divided into two categories: (1) discovery of documents the defendant has or controls (including studies and internal memoranda generated by the defendant incidental to a government report) and (2) discovery of documents from a government agency itself. Occasionally, you will have to seek these documents outside the United States.

Discovery from Defendant

Getting the defendant to give you the information you need is still a challenge, but it is somewhat easier than it used to be. Under the Amended Rules of Federal Civil Procedure (effective December 1, 1993), a party is required - without waiting for a formal discovery request - to provide other parties with "a copy of, or a description by category and location of, all documents, data compilations, and tangible things in the possession, custody, or control of the party that are relevant to disputed facts alleged with particularity in the pleadings."(2)

If a party claims that information is privileged or subject to protection, the party must describe the documents so that the claimed privilege or protection can be assessed."(3)

Under the amended rides, the greater the specificity and clarity of the allegations in the complaint, the more complete the voluntary disclosure of documents is required to be.

In the past, many defendants routinely objected to every request with the same rubber-stamp formula: "irrelevant," "burdensome," "privileged." It has been standard defense practice to file objections in boilerplate language and to fail to identify - much less specify - the basis for any claims of privilege.(4)

Therefore, despite changes in Rule 26 designed to expedite discovery, it seems fair to predict that defendants will not hand over government reports and studies without a hard fight.

Defense objections fall roughly into three categories.

* "This is irrelevant." The irrelevancy objection is clearly wrong. Government studies, reports, and related documents are recognized both as relevant and discoverable before trial and admissible into evidence.(5)

* "This is work product." There is no merit to this objection. The work-product privilege does not extend to statements or reports generated during routine investigations conducted in the ordinary course of business.(6) In order for work-product protection to attach to statements or information recorded during a routine investigation - even in circumstances giving rise to litigation - "the probability [of litigation] must be substantial and the commencement of litigation must be imminent."(7)

* "We don't have it." This is a favorite ploy of a defendant who does not physically have the requested documents but has access to them from a related corporate entity. Under Rule 34, documents possessed by a defendant corporation's closely related affiliate are considered in the custody of the corporation to which the discovery request has been directed.(8) As the Supreme Court explained in 1988, a domestic subsidiary of a foreign corporation is capable of answering for its parent and stands in the shoes of the parent for most intents and purposes.(9)

Discovery from U.S. Government

Rule 34(c), as amended in 1991, extends the scope of discovery to third parties, including government agencies. Statutes and regulations put limits on discovery of government documents, but most courts give any limiting words a broad construction that allows agency information to be discovered.(10) Thus, another door has been opened.

Similarly, under Rule 30(b)(6), you may seek to depose representatives of a government agency, but the agency itself, under its own regulations, has the right to designate who will testify on its behalf.(11) If only production of documents is sought, your request for documents must be directed to the head of the particular government department rather than to any governmental subordinate.(12)

Discovery from Foreign Sources

In some cases, your search for documents will, take you abroad. Under traditional notions of power and jurisdiction, a court cannot simply order production of records in the custody of a nonparty located in another judicial district. This principle applies in both domestic and international cases.(13)

To facilitate the taking of evidence abroad, the United States joined the Hague Convention, or as it is more formally known, the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.(14)

The United States follows both the Federal Rules of Civil Procedure and the Hague Evidence Convention. The convention does not deprive federal district courts of their power to order a foreign national party within its jurisdiction to produce evidence located in a signatory nation.(15)

The convention is important, nevertheless, because it establishes "methods to reconcile the differing legal philosophies of the Civil Law, Common Law, and other systems with respect to the taking of evidence."(16)

Many of the civil law nations that participated in drafting the convention regard nonjudicial evidence taking, even from a willing witness, as a violation of sovereignty.(17) For example, unlike common law nations such as the United States and Great Britain, in civil law countries the judge functions as the sole evidence gatherer, questioning, witnesses and compiling documentary evidence.

Use of the convention to obtain evidence abroad, however, advances the sovereignty interests of foreign nation because they have given consent to convention procedures by ratifying them This consent encompasses discovery techniques that would otherwise impinge on the sovereign interests of many civil law (as opposed to common law) nations.

Under Article 9 of the convention, a foreign court must grant a request to use a "special method or procedure" for discovery. Under this procedure, counsel may ask the court to compel attendance of witnesses abroad, to administer oaths, to produce verbatim transcripts, or to permit counsel for both parties to examine witnesses.

Discovery of documents under the convention is accomplished by means of a letter of request (formerly known as a "letter rogatory") directed by the "judicial authority" of a contracting country to the "competent authority" of another contracting country. Each "Contracting State" is responsible for designating a central authority to receive and execute letters of request.(18)

A letter of request must be translated into the language of the authority requested to execute it. English or French is acceptable unless a signatory has objected.(19)

A letter of request may be refused only if the judiciary sending the request was not competent to do so or the receiving country believes its sovereignty or security would be prejudiced. Execution may not be refused solely on the ground that under its internal law the receiving country claims exclusive jurisdiction over the subject matter of the action or that its internal law would not admit a right of action on it.(20)

Pre-trial "taking of evidence" (like the U.S. procedure for pre-trial deposition) is provided for under Articles 15, 16, and 17 of the convention. These generally provide that a diplomatic office of one contracting country, while on the territory of a foreign contracting country, may take the testimony of citizens of its own country, of the country where the office is located, or of a third country. Under Article 21, the evidence may be taken in the manner provided by the law that applies to the court where the action is pending.

There is a drawback to using the Hague procedures for the discovery of documentary evidence - including government reports (whether in the possession of parties or nonparties). Article 23 expressly authorizes a contracting country to declare that it will not execute any letter of request to aid discovery of documents in a common law country. Unfortunately, 13 of the original 17 signatory countries have made declarations under Article 23 that restrict discovery requests from common law countries.(21)

Under these circumstances, the only recourse for U.S. litigants may be to proceed under the Federal Rules, recognizing that this course simultaneously and inevitably will impinge on the sovereignty interests of nonconsenting civil law nations.

Admissibility

The admissibility into evidence of domestic or foreign government reports is governed by Federal Rule of Evidence 803(8). This rule provides that the following public records are admissible as hearsay exceptions, regardless of whether or not the declarant is available to testify: "records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth ... (c) ... factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness."

In Beech Aircraft Corp. v. Rainey, the U.S. Supreme Court dramatically enlarged the scope of admissibility of government reports and opted for a broad interpretation of the definition of "factual findings" as that term is used in Rule 803(8)(c).(22) Factually based conclusions and opinions in government reports are admissible and may be given evidentiary weight and consideration.

Rule 803's admissibility prerequisite for government reports (that the reports have been made pursuant to authority granted by law") is always met when they are U.S. agency reports. The agencies operate only under authority granted them by Congress. Their reports inevitably are generated in fulfillment of agency purpose.(23)

Untrustworthiness is the only grounds for precluding government reports. Because public officials performing investigative duties under lawful authority are presumed to perform their duties properly,(24) it is rarely possible to show lack of trustworthiness.

A court may not focus on questions regarding the accuracy or completeness of a document's conclusions. The prime focus must be whether the report was compiled or prepared in a way that indicates that its conclusions can be relied on, not whether the court agrees with them.(25)

Foreign government reports are equally admissible under Rule 803(8)(c). These reports likewise fall within the broad scope of admissibility defined in Rainey.(26)

Superior Evidence

Discovery and use of government reports may very well be the way you can establish a defendant's liability beyond a doubt.

Unlike a defendant's internal documents, government reports cannot be lost, altered, or "explained away." These documents are concrete, unalterable, and independent. Furthernmore, they provide trustworthy evidence on whether or not a product complies with a government standard. They also provide actual dates when a defendant knew of a danger. More often than not, these reports arc the secret weapons that will help you win the case.

Notes

(1) See, e.g., Simmons v. Honda, No. 1:91-CV-0079-RCF (D. Ga. Dec. 17, 1991). (2) FED R. CIV. P. 26(a)(l)(B). (3) FED. R. CIV. P. 26(b)(5). (4) See, e.g., Malautea v. Suzuki Motor Co., 987 F.d 1536 (11th Cir.), cert. denied, 114 S. Ct. 181 (1993); Fjelstad v. American Honda Motor Co., 762 F.2d 1334 (9th Cir. 1985); Schaap v. Executive Indus., Inc., 130 F.R.D. 384 (N.D. Ill. 1990); Shiner v. American Stock Exch., 28 F.R.D. 34 (S.D.N.Y. 1961). (5) See, e.g., Culligan v. Yamaha Motor Corp., 110 F.R.D. 122 (S.D.N.Y. 1986) (manufacturer's communications to CPSC were discoverable subject to restrictions in appropriate confidentiality order). (6) Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C. 1982). (7) Miles v. Bell Helicopter Co., 385 F. Supp. 1029, 1033 (N.D. Ga. 1974) (quoting Duplan Corp. v. Deering Milliken, Inc., 61 F.R.D. 127, 130 (D.S.C. 1973)) (emphasis added). (8) Cooper Indus., Inc. v. British Aerospace, Inc., 102 F.R.D. 918 (S.D.N.Y. 1984). (9) See Volkswagenwerk A.G. v. Schlunk, 486 U.S. 694 (1988). (10) See, e.g., Light v. State, 547 N.E.2d 1073 (Ind. 1990); Martinolich v. Southern Pac. Transp. Co., 532 So. 2d 435 (La. Ct. App. 1988); Lamitie v. Emerson Elec. Co., 535 N.Y.S.2d 650 (1988) (communications were not statutorily privileged under Consumer Product Safety Act). (11) See, e.g., Cates v. LTV Aerospace Corp., 480 F.2d 620 (5th Cir. 1973). (12) 8 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE, [section] 2019, at 166 (1970). (13) See Elder-Beerman Stores Corp. v. Federated Dep't Stores, 45 F.R.D. 515, 518 (S.D.N.Y. 1968); Societe Nationale Industrielle Aerospatiale v. United States Dist. Ct., 107 S. Ct. 2542 (1987). (14) See 28 U.S.C.A. [section] 1781 at 412 (1994). The following countries are listed as signatories to the Hague Convention: Argentina, Australia, Barbados, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Israel, Italy, Luxembourg, Mexico, Monaco, Netherlands, Norway, Portugal, Singapore, Slovak Republic, Spain, Sweden, United Kingdom, United States. (15) Societe Nationale Industrielle Aerospatiale, 107 S. Ct. 2542, 2553. (16) Rapport de la Commission Speciale, 4 Conference de la Haye de Droit Internationale prive: Actes et documents de la onzieme 55 (1970). (17) See, e.g., John H. Langbein, The German Advantage in Civil Procedure, 52 U. CHI. L. REV. 823, 826-28 (1985) (discussing the judge's role in German trials). (18) 28 U.S.C.A. [section] 1781, at 413 (Articles 1 and 2). (19) Id. at 413-14 (Article 4). (20) Id. at 415 (Article 12). (21) See id. at 420-33 (Notifications). (22) 488 U.S. 153 (1988). (23) For example, NHTSA reports on motorcycle sidestand retraction failure (C 83-01) are made pursuant to authority contained in 15 U.S.C.A. [section] 1381 (1988). (24) Kehm v. Procter & Gamble Mfg. Co., 724 F.2d 613, 618 (8th Cir. 1983) (25) Moss v. Ole South Real Estate, Inc., 933 F.2d 1300 (5th Cir 1991). (26) See, e.g., In re Korean Airlines Disaster, 932 F.2d 1475 (D.C. Cir.), cert. denied, Dooley v. Korean Airlines, 112 S. Ct. 616 (1991); In re Oil Spill by Amoco Cadiz off Coast of France, 954 F.2d 1279 (7th Cir. 1992).

Joel D. Fogel is a partner with Fogel, Rubin & Fogel in Miami. Claire B. Ford is an independent legal writer and researcher in Miami.[C] Association of Trial Lawyers of America. This article appeared in a different form in the August 26, 1994, issue of BNA Product Safety & Liability Reporter.