The thrill of discovery…and the agonizing work to discover a smoking gun

According to the Daily News, “City may again face fatal-crane lawsuit.”

You might remember that in 2008, two construction workers died when an enormous building crane that had been inadequately maintained collapsed on them. The families of the workers sued.

One of the original defendants was the City of New York, because the City’s Department of Buildings bears some responsibility for the integrity of machinery used in construction. That is, the owner of the equipment must inform the DOB whether the equipment was operating with replacement parts after being repaired and, I suppose, the DOB must sign off on the equipment or reject its use.

The City was dismissed from the case because a DOB official swore “in depositions that he had never been notified that the crane was operating with repaired parts…”

Now, here’s the part that gets thrilling:

Shortly after the city was cleared of liability, somebody moved some furniture and found [a] letter [from the crane’s owner to the DOB, stating that the crane had been repaired] near a desk where [the DOB official who had testified] sat and the Department of Investigations shared it with the families’ lawyers who exploded with fury this week.

“They denied they ever had this letter and then coincidentally, right after the judge’s ruling, they turned it over buried in 9,000 pages of material that we mostly had already,” [Susan] Karten [the plaintiffs’ lawyer] said. [My emphasis]

Whether the City actively buried that letter isn’t as important to me as the bolded portion, above. In order to find that letter, Susan Karten and her co-counsel, Bernadette Panzella, had to read through every one of 9,000 pages of documents turned over to them.

It is acknowledged legal game-playing to turn over thousands of pages, often out of any kind of order, thinking that a careless or overwhelmed plaintiff’s lawyer will overlook the one important document buried in the pile. (I once faced something like 30 transfile boxes of discovery thrown into the boxes in no particular order.)

Really good lawyers — and/or their really terrific paralegals — must log in and read every single item. Obviously, that’s what Karten and Panzella did in this case, and did it twice.

And later, when I get to Sidebar‘s discovery stage, I’ll be advising plaintiffs to do the logging in and reading yourselves. Not only do you know the path of the lawsuit represented by these documents better than anybody, you’ll be saving your lawyer a lot of work. (Besides, it’s so much more exciting than just sitting around and waiting for your lawyer to do it.)

P.S. Not only have I known plaintiffs’ lawyers who failed to log in and read through every discovered item they received, I’ve known defendants’ lawyers who did not make a log of the discovery documents they themselves turned over. While no lawyer expects a discovery log from the opposition, no lawyer should be turning over documents without making a log for himself.

And what an unpleasant surprise that can be for lawyers during depositions — when documents they turned over, but didn’t know existed — get handed back to them as plaintiff’s exhibits!



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