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Products As Witnesses
Typically, in product liability litigation, the product involved in the accident can be an eloquent 'witness' as to what happened. The product tells trained eyes much about what happened in the mishap via 'positive' evidence, i.e., the appearance of damage, dents, marks, scratches, and so on, or via 'negative' evidence, i.e., the absence of damage or marks that should have been there had a particular event or sequence actually occurred. This cardinal evidence is so important that articles have referred to the accident product or components as the 'crown jewels,' a reference particularly apt in the context of the subject of spoliation of evidence.
Because of the importance of the 'crown jewels,' litigants should be assiduous in trying to locate and preserve the accident-involved product and in trying to assure the integrity of its custody and condition from the time of the accident. Indeed, a failure to do so can result in spoliation-of-evidence sanctions.
Typically, the adversary will demand to inspect the 'crown jewels' as well. The terms and conditions by which the non-custodial litigant can have access to the product or components can be negotiated or made the subject of a court order. The adversary's inspection may even be monitored by the litigant-custodian to make sure the integrity of the 'crown jewels' is not violated. Inspectors often don't like such 'shadowing,' for it may reveal the areas of interest upon which the inspector focuses. Sometimes, these concerns can be alleviated by an agreement or court order that the product's condition not be altered or affected.
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