USA Law and Practice Contributed by: Trevor Keenan, Michelle Byers Graham and Curtis Berglund, Campbell Conroy & O’Neil, P.C.
be asserted as an affirmative defence to the claim. In some jurisdictions, the filing of the lawsuit is sufficient notice to the defendant. 2.6 Rules for Preservation of Evidence in Product Liability Claims Once an entity “reasonably anticipates” becoming party to a litigation or the target of a governmental investigation, it has a common law duty to preserve all potentially relevant documents and tangible things, including electronically stored information, that may be discoverable in that litigation or investigation. This duty extends to materials within a party’s possession, custody or control and materials it created, revised, sent, received or changed, and applies regardless of where the party has physical custody of the mate - rials. In product liability cases, parties may also be required to preserve tangible things such as the alleg - edly defective product. The standards for appropriate preservation of evi - dence include reasonableness, proportionality and accessibility. A legal hold should be promptly imple - mented if it could be credibly argued that either an investigation or litigation involving the materials at issue is likely. Fed R Civ P 37 (e) governs the potential consequences if a legal hold is not properly imple - mented or adhered to. 2.7 Rules for Disclosure of Documents in Product Liability Cases The scope and timing of discovery in federal court is governed by Fed R Civ P 26. State court discovery rules and practice are similar to the federal rules but often have their own nuances. Rule 26 (b)(1) defines the scope of discovery as “any non-privileged matter that is relevant to any party’s claim or defence and proportional to the needs of the case”. Proportional - ity requires an assessment of “the importance of the issues at stake in the action, the amount in controver - sy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discov - ery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit”. Fed R Civ P 34 governs the production of documents and tangible things, whether in physical documents,
electronic records and data, records of communica - tions (physical, email, text, recordings, etc), or physi - cal objects such as the product itself. Fed R Civ P 45 addresses the procedures for obtaining documents from a non-party through the service of subpoenas. In a product case, typical non-parties include the plaintiff’s employer, prior owners of the product, and healthcare providers. 2.8 Rules for Expert Evidence in Product Liability Cases Expert witness testimony in federal court is governed by Federal Rules of Evidence 702 and 703. Amend - ments to Rule 702 that went into effect on 1 December 2023 clarify the standard for the admissibility of expert testimony. The Amended Rule 702 states that a witness who is qualified as an expert by knowledge, skill, experi - ence, training or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that : • the expert’s scientific, technical or specialised knowledge helps the trier of fact understand the evidence or determine a fact at issue; • the testimony is based on sufficient facts or data; • the testimony is the product of reliable principle and methods; and • the expert ’ s opinion reflects a reliable application of the principles and methods to facts of the case. Rule 703 provides that an expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. While certain information that an expert relies on in forming their opinions may not need to be admissi - ble, if the facts or data would otherwise be inadmis - sible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. Federal Standard for Admissibility of Expert Testimony Amended Rule 702 emphasises the judge’s role as gatekeeper for expert testimony and articulates the
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