Insights from the Defense No. 1: From Start to Finish: Some Tips To Preclude Extraneous “Other Instance” Evidence In Discovery Or From The Jury’s View

At the outset of litigation, defendants are oftentimes served with a barrage of discovery requests that are—objectively—overbroad, irrelevant and immaterial. Maybe cookie-cutter requests served by the plaintiff’s counsel in all cases, or maybe just a fishing expedition for the specific case, who knows. But from the inception of a case we, as defense counsel, must aim to re-calibrate the parameters of discovery requests to those that are “reasonably calculated to lead to the discovery of admissible evidence.” To that end, defense counsel often lodge a host of one-size-fits-all objections. These objections are fine to start—but are these objections enough to limit the discovery or admissibility of evidence that really should never reach a jury? The answer is not usually.

In practice, the Plaintiff’s bar almost always serve some form of discovery requests that seek “other instance” evidence. This “other instance” type of discovery request is usually lodged against defendants sued over an alleged breach of a service, maintenance or repair contract; or manufacturers of an allegedly defective product; or marketers alleged to have engaged in deceptive advertising practices; or security and property management firms sued for allegedly allowing unsafe conditions or activities on a premises, just to name a few. The discovery requests often take the form of a request to produce all 1) maintenance history of the subject product/premises and other products/premises, 2) complaints or services performed on other products or concerning other conditions within a premises, 3) other marketing campaigns published, 4) other instances where some event occurred, or 5) other products manufactured, installed or sold in a certain time frame.  The requests as phrased may or may not contain a geographic limitation and may or may not contain a time limitation.  Yet, in contrast to the scope of these requests, the allegations in the corresponding Complaint often pertains to one contract, one incident, one product, one premise or limited marketing campaigns. So, what gives? Does a Plaintiff really need all “other instance” evidence to prove their prima facie claim? The answer, of course is no. Want, yes, but need, no.

However, if discovery requests asking for other instance or other act evidence are not properly dealt with from the beginning, or at least efforts to prevent or limit access to this evidence are not conceived and commenced from the beginning, these discovery requests—and corresponding document production and testimony—are likely to later serve as a basis for Plaintiff to introduce other instance and other act evidence at trial to paint a broader liability picture or the appearance of negligence or culpability where there otherwise was none, which is a narrative often beyond the scope of the claims raised in the pleadings.

For the defense bar, there are several strategies to employ from the beginning of a case to work to preclude discovery of other instance evidence, and in the event this cannot be achieved, there are other strategies to be employed throughout the discovery process to set the case up for a successful pre-trial ruling to preclude other product, other instance and other act evidence.

Defining the Parameters of “Reasonably Calculated to Lead to the Discovery of Admissible Evidence”

It is important to understand a Plaintiffs underlying motive in attempting to obtain other instance evidence: Plaintiffs, in propounding requests for records and evidence of like-but-not-the-same product or thing that caused injury, often seek to obtain a comparative set of documentation that Plaintiffs may attempt to use to show there was something wrong with this particular product, or the at-issue equipment did not receive as much maintenance as another piece of equipment, or some comparatively greater safety measures at another location were implemented and thus similar incidents were avoided. The “other instance” evidence, when used as comparisons, can go in many different directions: 1) the failure rate of the product or the incident rate at the premises at issue looks comparably worse to others, or 2) the product or premises failed to meet expectations or performance criteria used with other products or premises, or 3) the amount of attention via service or maintenance activities given to other products or premises is comparatively greater, suggesting the product or premises at issue was overlooked, or 4) there is a larger pattern of failures or neglect that can be inferred by a combining all “other instance” data from a larger data set, even though there are few or perhaps no instances of prior failure or neglect related to the product or premises at issue in the specific case. There are, of course, many other detrimental ways that comparative evidence can become weaponized against the Defendant.

We have devised a number of ways in which to challenge requests for “other instance” and “other act”  evidence and, sometimes more importantly, keeping this type of evidence out of a trial. Our experience has shown that with enough attention where it is deserved and with a methodical plan, the admissibility of this evidence can be successfully challenged.

The Discovery Phase

First, consider challenging discovery requests based on temporal limitation. The key here is to find an anchor that defines how and why a desired time limitation sets the outer bounds of evidence that is reasonably calculated to lead to the discovery of admissible evidence. Time, in and of itself, does not define anything. It is the underlying subject matter that defines the relevant time frame. Using maintenance contracts as an example, we often receive requests to produce the entire maintenance history on a certain equipment for a period of years. Well, if that equipment is an elevator for example, the relevant question is: what does “X years” really measure? As defense counsel, we create a narrative for the Judge that often sounds like this: elevators are used every single day, multiple times a day, could be a hundred times a day. If there is a condition on the elevator that a plaintiff wants to discover, or show Defendants notice of a condition, how many thousands of uses do you think would reveal the condition or “notice” of the condition?  We argue that equipment conditions vary depending on use, and the further out the less relevant and certainly the less reliable any additional evidence becomes. So, if 1000 uses of an elevator which occurs every month is the determinant of a change in conditions, then we argue that 6-months is the relevant time frame – that’s at least 6000 uses of the machine in question – hardly a small data set, so we say. And that “condition” limitation, by implication, defines the time period in which a Defendant would receive notice of some condition. This type of analogy can be used in infinite ways and frequently works to substantially contain the temporal scope of any discovery requests.

Second, consider the geographic scope of the request and how that is potentially relevant to the claim at hand, A request seeking our client’s records nationwide, or across a State, or branch-wide, or for an entire site, are all different measures of geography. But, like time, geographic scope is often irrelevant and indicative of nothing in and of itself.  Our efforts here are to emphasize the arbitrary nature of a geographic limitation. Using an elevator maintenance contract as an example, evidence of all maintenance history on other elevators in the state or even other elevators on a given premises is an arbitrary geographic scope. Their physical proximity to each other does not translate to any other connection, and certainly no causal connections. Our arguments here are often  There is no “pattern of systemic failure”—which is what these requests typically seek to obtain—that could conceivably relate to the claims raised in the pleadings.

Third, consider challenging the requests on grounds of substantial similarity. Substantial similarity is a dynamic concept that can be defined for the needs of the case.  In a product liability context, defense counsel almost always see a request for “complaints” of all the times an equipment “malfunctions.” But “complaints” and “malfunctions”  are not the functional equivalent of substantial similarity. This is because an equipment malfunction can be measured as: 1) a symptom, 2) a manifested end result, 3) an underlying cause, or 4) an unknown. In some instances, it may be helpful for defense counsel to argue that substantial similarity is defined by root cause only, and not the observed end result of a particular piece of equipment or of a particular transaction. In other cases, it may be more beneficial for defense counsel to argue that substantial similarity is defined by a particular symptom-as opposed to general complaints about some conditions (which is not indicative of an equipment symptom at all.). In other case contexts,  substantial similarity may be measured by a specific pattern (i.e., all times where a certain sequence of events occurs), and discovery requests should be limited accordingly. It is important to recognize that Plaintiffs broadly phrase discovery requests and define for themselves what facts or allegations equate with substantial similarity. It is defense counsel’s role to re-define substantial similarity by specific variables involved in a case.

There are many other arguments that can help prevent or establish limits on the discoverability of other incident evidence, and yet sometimes efforts at preventing discovery into other instance evidence fails to get the attention and effort it deserves. However, blocking the threshold is exactly where most effort should be given. A focused strategy of challenging other instance discovery requests, if successful, narrows the defense to a single event or single product failure which, in reality, is truly defending against the only legitimately alleged claim raised in the pleadings. Rarely are our clients sued for system-wide or product-line failure, and the scope of discovery should match that. Indeed, defending against irrelevant or purely anecdotal “comparative” evidence is like trying to herd cats into a corral of ill-defined borders. Preventing a plaintiff from obtaining other instance evidence substantially limits their ability to use a broader liability concept as leverage to negotiate higher settlements and paint a defendant as a “worse” actor at trial.

What if A Jude Rules that Other Instance and Other Act Evidence Is Discoverable?  

In case a discovery dispute is lost, defense counsel’s next tool is using fact and expert depositions to essentially nullify other instance and other act evidence by demonstrating its lack of relevance or perhaps that such evidence is merely trivial and therefore suspiciously relied upon. This can be done in many different ways and is an entire subject in itself. But to this end, defense counsel should prepare all of its discovery responses and prepare for each witness deposition with the idea that the response or the deposition testimony will be attached to a motion in limine to preclude from trial other instance and other act evidence. To be frank, the motions in limine should be written in the deposition outlines themselves. For example, in examining an expert, defense counsel will find that many experts do not use other instance and other act evidence to form an opinion on specific causation. And if they do use other instance or other act evidence, the weight given to such evidence is frequently very low. Most experts concentrate on the one instance, one occurrence, or one contract, and their focus is generally within a narrow time frame alleged in the pleadings. Obtaining concessions that the experts themselves disregard remote instances and unconfirmed or under-investigated failures with other products or equipment, or alternatively obtaining concessions that the experts did not use other product or other instance evidence to formulate their causation opinions in this case, should all be part of the deposition outline. In practice, most experts never take the time to forensically examine the causes of product failure or some other incident so as to opine on the underlying causes of that other product failure or event. Indeed, when pressed to find relationships between other incident or other act evidence and the at-issue incident or event, most experts are unable to identify or at least commit to the confines of a ‘relevant’ time period for evaluation, or ‘relevant’ geographic location, or what exactly amounts to ‘substantial similarity’ or what a true ‘root cause’ is for purposes of declaring another event or another act ‘identical.’

Closing Points

The prejudice to a defendant in permitting exploration into other act other instance evidence and worse, allowing such evidence to be presented to a jury at trial, is clear: if a case involves an insolated situation, event, product or contract (as it often does), the jury should hear evidence that is limited to that situation, event, product or contract. Other instance evidence transforms, psychologically if nothing else, into “bad act” or “bad character” evidence at trial: a jury will see and hear the tale of other-occasion horribles and perhaps form a belief that the defendant is somehow the wrong doer even if not proven on this occasion, then surely some other. The volume of discussion is simply louder when there is more to talk about, despite missing genuine relevance to the specific event at issue. On the flip side, if all the evidence at trial is limited to the event, contract, situation, etc. in question, then a jury is more apt to form beliefs and opinions that this certain issue occurred the one time that it did despite a defendants’ numerous business dealings, national or global operations, or substantial product sales and services. We know that corporate defendants are not generally bad actors, and the evidence at trial should never be a misconstrued picture otherwise. Getting ahead of this other instance evidence from the start of a case can potentially be the determining factor in the ultimate outcome itself.