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Practice Tip: Putting a Product on Trial Without Compromising the Defense

By Peter A. Antonucci

Very often, a responsible product manufacturer will want to explore the efficacy or safety of one of its products in connection with placing it into the stream of commerce. Such a self-critical examination may occur during the research and development phase of manufacturing ' or even after the product is on the market. True candor and an unvarnished evaluation will be essential to reaching a useful conclusion. At the same time, however, wary of the ever-present threat of litigation, a prudent company does not want to create a treasure trove of discoverable materials that will have to be produced in response to even the most basic discovery requests.

Hence, the dilemma: A company will want to learn everything that can be known about the propensities of a product, but that good intention is juxtaposed against handing plaintiffs a complete dossier of who knew what, and when. From a business standpoint, the company must undertake a weighing analysis before it decides how much privileged information should be shared, or created, in connection with a self-evaluation. Critical to such a determination is an understanding of the law ' knowing exactly what is protected, and under what circumstances.

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