How to win a lawsuit: Keep good records

April 26, 2007
Companies that keep accurate records of their activities will be glad they did should they become involved in a product-liability lawsuit.

Good records will help prove to a jury that your company did everything that it reasonably could to design, manufacture, and sell a safe product. Conversely, bad record keeping can destroy a case.

Records contain the information on which a company makes its decisions, including the decisions themselves. Records cover all aspects of company operations: administrative, research, marketing, manufacturing, testing, legal, and so on. They include data from within and outside the company (competitors' marketing materials held within company files, for example), and information about how the company reviews its own work.

Records, by this definition, reach far beyond anything written on paper to include information stored in a computer, on microfiche, microfilm, dictating tapes, and any other enduring form of information storage. Records aren't only the final, formal statement officially adopted by a company on a subject. They include any enduring account of initial thoughts, rough drafts, criticisms, as well as notes written in margins (NEVER do this).

The definition of a record does not depend on how widely the information is circulated. An employee's work notes which were never given to anyone else to read may be considered records under the proper circumstances and could be disclosed as evidence in litigation. In a lawsuit, records are reviewed one-by-one and collectively. Plaintiffs may use records to show a clear pattern of behavior such as negligence, careless disregard, or intent to deceive.

Be especially vigilant regarding internal memos written with the intent to influence a company decision. Authors of such memos may overstate or exaggerate in order to persuade. This has proven deadly in engineering-change requests during product-liability cases. This type of memo can surface in the discovery phase, and may give the impression that a company plays loose and fast with the facts. In the end, exaggerations or inaccuracies could destroy credibility of the corporation with a jury.

With this in mind, employees should know the importance of creating accurate and clear records. Writing so the author and a few other people understand may not be enough. A record should have the same meaning for anyone who reads it, whether that person is inside the company or sitting on the jury trying a product-liability lawsuit.

Here are a few tips for better records management:

  • Know applicable federal, state, and local requirements regarding what records should be kept and how long.
  • Use your company's record-retention manual (RRM) for all decisions.
  • Know what records are not covered by the RRM.
  • Know what to do when the RRM seems inappropriate.
  • Know when to contact your corporate attorneys.
  • Dispose of unnecessary or duplicate records.

In next month's column, I'll take you through a product-liability lawsuit in which poor record keeping led a to seven-figure judgment.

Lanny Berke is a registered professional engineer and Certified Safety Professional involved in forensic engineering since 1972. Got a question about safety? You can reach Lanny at [email protected]

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