An essential step in any product liability litigation is learning the history behind the product at issue. Frequently, the manufacturer’s files are incomplete, especially when the product was created long ago. Documents relating to the product’s creation, design, testing, production, safety record, etc., often may be obtained from other sources, both public and private. Good attorneys know how to search for such documents from other sources and do so as part of their case development. The attorneys might personally conduct the search or use associates, private investigators, or litigation support firms that specialize in historical document research.

Can an attorney keep such documents “under wraps” and undisclosed to opposing counsel? If so, on what grounds? Must an attorney identify the documents withheld on a traditional privilege log or by other means? May the documents later be used by the attorney who withheld them? Most attorneys have a strong opinion on this subject, but the case law is mixed. Attorneys should consider the issue carefully before searching for documents from outside sources.

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