Toxic tort lawsuits typically involve a vast amount of complex evidence — and the discovery process can significantly impact the trajectory of a case. Although the discovery rules allow for a broad scope of inquiry, the information sought must be relevant, proportional, and not unduly burdensome. Defendants should be prepared to object to overly broad requests and take steps to protect proprietary information. For businesses facing toxic tort litigation, it is critical to have a basic understanding of discovery and the proactive tools that can be utilized to develop an effective defense.

What Tools Are Used in the Discovery Process?

The discovery process is the stage of civil litigation where evidence is exchanged between parties. It is often the most time-consuming and complex phase of a lawsuit, particularly in toxic tort matters, which often involve latency issues, allegations of long-term exposure, and evolving scientific research. Discovery allows each side to learn about the other’s position in order to build their case and prevent surprises at trial.

There are a number of discovery tools that can be used in toxic tort litigation, including:

• Interrogatories: Interrogatories are formal, written questions that must be answered in writing under oath. They can establish the basic facts of the case and narrow the issues that must be tried in court.
• Requests for admission: Requests for admission are written demands that ask a party to admit or deny the truth of specific statements under oath. They can streamline litigation by clarifying the factual issues in dispute for trial.
• Requests for production: This tool can be used to obtain documents, electronically stored information (ESI), compliance records, safety data, and physical evidence relevant to the case.
• Depositions: Depositions allow counsel to ask parties and witnesses questions under oath. The testimony can be used to uncover facts, assess a party’s credibility, and potentially impeach a party at trial.

If information is sought from third-parties who are not involved in the lawsuit, or other discovery methods have failed, a subpoena can be used to compel testimony or the production of certain documents.

Protecting Proprietary Information During Discovery

Toxic tort cases typically involve sensitive information, large volumes of electronically stored information, trade secrets, confidential safety protocols, industrial processes, and internal communications regarding product development. While defendants have a duty to produce relevant information, they should also ensure their proprietary information is protected from unnecessary disclosure. Several mechanisms that can be used to protect sensitive information during the discovery process include:

Protective Orders

A protective order is essential to safeguard a company’s confidential information, prevent dissemination to competitors and the public, and limit access to sensitive materials. Under Federal Rule of Civil Procedure 26(c), a court may grant a protective order upon a showing of good cause to limit the scope of discovery and impose conditions on how it is handled, stored, or destroyed.

Confidentiality Agreements

Parties can stipulate to a confidentiality order as a case management tool without court intervention. While these agreements are negotiated directly between the parties, they can be tailored to the needs of the case and allow the parties to maintain more control over the scope of confidentiality. These agreements can also provide for more flexibility and efficiency during the discovery process.

Strategic Use of Confidentiality Designations

Strategic use of confidentiality designations under an existing protective order or confidentiality agreement can allow litigation to proceed while preventing misuse of proprietary information. A defendant can mark proprietary information as “confidential” or “highly confidential.” For material that is deemed highly sensitive, an “attorney eyes only” designation may be appropriate. Notably, confidentiality designations must balance the need to protect sensitive information with compliance in discovery to avoid court scrutiny.

Conduct a Privilege Review

Defendants should assert attorney-client privilege and work-product doctrine whenever applicable. Importantly, a meticulous privilege review can mitigate risk of inadvertent disclosure. Under Rule 502(b) of the Federal Rules of Evidence, inadvertent disclosure does not operate as a waiver in the event that 1) reasonable steps were taken to prevent disclosure, and 2) reasonable steps were taken to resolve the error.

Contact an Experienced Toxic Tort Attorney

Toxic tort litigation is complex, and it is vital for defendants to work with an attorney who can assist with navigating the discovery process and developing a strategic defense. Offering aggressive defense for businesses in toxic tort claims, Cosmich is committed to protecting our clients’ companies and their bottom lines. With coast-to-coast offices, our attorneys are equipped to handle matters involving multiple claimants across jurisdictions. Contact us to schedule a consultation.