Conduct nontraditional discovery with ATLA Exchange litigation packet.

Before you file a lawsuit--and throughout litigation--you need to gather as much information as you can without the defendant's involvement. To help you do this, the ATLA Exchange created the Nontraditional Discovery Litigation Packet, which lays out basic strategies for finding and using sources outside of traditional discovery channels.

The packet includes tips for finding information about people, businesses, and assets; conducting literature and intellectual property searches; uncovering a defendant's litigation history; digging up details about health care facilities and practitioners; researching product, workplace, and transportation safety issues; getting facts on trade and industry organizations; and locating government and foreign jurisdiction resources. It also provides an annotated outline of nontraditional resources, supplemented with "how-to-find" examples. Many are cases gleaned from ATLA Education program speakers.

While some public information is easy to find, especially by using the Internet and commercial services, official records are more difficult to get. For instance, you may need to submit Freedom of Information Act (FOIA) requests for official federal and state records that are not normally available to the public. The Nontraditional Discovery Litigation Packet includes a variety of FOIA resources to help you navigate federal and state FOIA and privacy acts.

The big three

In general, there are three primary sources of information about a corporation: regulatory compliance forms, litigation history, and marketing materials. You can combine information from these sources to create a detailed picture of a defendant. The following example of a trucking case illustrates how you can use this information.

Regulatory compliance. You can uncover important information about a motor carrier's safety fitness from the Federal Motor Carrier Safety Administration (FMCSA). Many of the FMCSA's services and databases are free. In them, you can find a "company snapshot"; information on a company's licensing and insurance; a list of out-of-service orders issued by the agency; and, for a nominal fee, a company safety' profile. For another fee, you can get detailed information on commercial and hazardousmaterial shippers through the FMCSA's Motor Carrier Management Information System Data Dissemination Program. Use FOIA requests to discover copies of enforcement, inspection, and crash reports.

Federal and state regulatory filings can provide a comprehensive overview of the carrier. Public companies are required to disclose meaningful financial and other information to the public, which you can access by looking at Securities and Exchange Commission (SEC) filings from the SEC's Electronic Data Gathering, Analysis, and Retrieval system (EDGAR). Some corporations also post their SEC filings on their own Web sites.

Three documents in particular can paint a detailed financial picture of a corporation; reveal litigation it is involved in; and identify corporate officers, directors, and subsidiaries. They are the Annual Report (Form 10-K); the Quarterly Report (Form 10-Q); and the Current Update (Form 8-K) of any material event (for instance, an assets sale, bankruptcy, or litigation) that can affect a company's stock price.

You can also use SEC filings to establish a parent corporation's liability. Look for references to the parent representing the carrier's business as its own, or to the parent calling itself the operator of the carrier's facilities, or cases where the parent acknowledged liability to the federal government for its subsidiaries' unlawful actions.

Litigation history. Many plaintiff attorneys conduct litigation searches using resources like the Exchange, the Law Reporter, and ATLA's list servers. You can use these resources to find lawsuits against a carrier, which would help to establish that the carrier had notice of a hazard; to obtain documents that support punitive damages; and to identify documents produced in other cases that might be helpful in yours. Review cases where an expert testified previously to see what you can expect from the expert's testimony and to find evidence to support a claim that the expert is a professional witness, a depiction you can use to attack his or her credibility.

Supplement information from standard resources with an Internet search. For example, use Google or another search engine to locate litigation information posted to court and other law-oriented sites, and news articles about other collisions involving the same carrier or the same highway location.

Marketing materials. The sources for a carrier's promotional materials include hard copies (such as brochures) handed out to customers, telephone directories, newspapers, and Web site postings. A Web site might include press releases, company histories and timelines, and financial statements. These can identify a parent company, subsidiaries, or a successor in interest; describe the company's structure; and identify past and current company leaders. The carrier's Web site may also discuss company programs. At the very least, advertised promises to "do whatever it takes to deliver cargo on time," for example, can provide good sound bites when you cross-examine the carrier's safety director.

In the end

By thoroughly understanding both a case's subject matter and the defendant, you can craft precise formal discovery requests and deposition questions, which will eventually return the most relevant information. The defense will respond more thoroughly to your traditional discovery requests when it realizes that you already know enough to challenge its credibility based on its refusal to produce requested information or denial that it exists.

For more information about the Nontraditional Discovery Litigation Packet, log on to the Exchange at www.exchange.atla.org and click on "Litigation Packets" or call (800) 344-3023.

JULIANN TIGERT is a research attorney with the ATLA Exchange.