It is not pleasant to contemplate suing an expert hired to testify for your client. Nevertheless, an attorney's cautious and prudent behavior may be enhanced and professional anguish minimized by frank consideration of the unpleasant possibilities.
On April 12, 1955, Thomas Francis stood on a podium at the University of Michigan and announced that Jonas Salk's polio vaccine was safe and effective. At last, Americans would be freed from the bonds of polio, a disease that routinely crippled as many as 50,000 children every year. However, triumph quickly turned to tragedy.
Document retention, and the host of related e-discovery issues, have been front and center for product liability attorneys for a number of years. Nevertheless, even with the best document retention program and the most sophisticated e-discovery system, companies and their attorneys are still going to have to deal with the documents themselves. As many trial lawyers have learned, it can take only one bad document to bring down the house. With respect to the increased use of e-mails as evidence in litigation, companies need to educate their employees on what constitutes appropriate online communication. We recommend that companies focus on training their employees to 'think twice and click once.'
In the pharmaceutical industry, due to all types of business pressures and constraints, it is not atypical for a company to behave reactively and in triage-mode, rather than considering proactive steps that it can take in the compliance arena. In 2005, the Food and Drug Administration ("FDA") issued three final guidance documents to help focus the industry and encourage companies to consider more thoughtfully and thoroughly the issues of quality risk assessment, minimization, and management collectively.
While we used to copy millions of pages a month and send out hundreds of overnight mail packages a day, current copying rates have dropped to a few hundred thousand pages, replaced by thousands of e-mails per day and "scan to PDF and print" jobs totaling millions of pages. With these advances in technology have come heightened client expectations to complete work in minutes or hours, rather than days. This means our equipment has to be very reliable and easy to use, allowing the attorneys to spend their available time focused on legal work, not on mechanical problems with scanners, copiers and printers.
Attorney-client privilege, liability for breach of confidentiality obligations and damage to a firm's reputation were all reasons originally cited for stopping the use of e-mail at law firms before it even started. Convenience and responsiveness to clients became justification enough to ignore the basic issue that e-mail was inherently insecure. The standard form disclaimer that we now see at the end of every lawyer's e-mail became the solution to protecting the confidential nature of attorney-client communications. Is it sufficient today?
Proactive Compliance. Risk Management. Loss Prevention. Regardless of what you call it, all firms have the need to assure that client information is handled properly at all stages, to mitigate litigation and penalty risks, and to protect client and firm reputation.
Lotus Notes, the desktop client for the Lotus Domino collaboration product suite, is one of the more widely used messaging platforms in large corporations. The unique aspect of Lotus Notes is that it's an application environment, as well an e-mail exchange system. It provides a platform from which to build a wide range of business applications where messaging and collaboration are the necessary foundation.
After months of preparation, the lawyers at Sanders, Simpson & Fletcher had their case almost ready for trial. The Springfield, MO, plaintiffs' firm of 11 lawyers had worked hard to fine-tune the civil case. Their client had the potential of being awarded significant damages. But the allegation -- sexual misconduct against a church pastor -- was tricky. Would the facts of the case resonate well with jurors?
