Finding the Needle in the Haystack
In my last post, I began to recount how we delved into a difficult discovery process, in particular dealing with the constant roadblocks put up by DuPont – in using what lawyers call a “document dump,” that is, providing so much information that it’s difficult to find what you need.
My colleague and I were going through reams of documents at the DuPont corporate library in Delaware, dealing with the polite but unhelpful librarian, who did her best to steer us the wrong way.
Finally, we realized that if she sent us to the right, we ought to check out whatever was to the left. If she said look up, we should look down. We’d go to wherever she told us to search and begin by looking around the edges, then work our way out and back in again. Odds were that whatever we were looking for—especially if it was the rat studies on Benlate or benomyl—we were not going to find it there. And if the studies were there, they weren’t going to be clearly labeled “Rat Studies.”
We did, however, find some in-vitro tests and dermal skin transmission studies that proved to be important elements in our case. The in-vitro tests showed the level of exposure to benomyl at which cells die, and the dermal skin transmission studies showed what percentage of the chemical could permeate human skin.
The in-vitro test results were good for us, because they illustrated that at the very low dose of 22 parts per billion of benomyl, cells die. This is what causes malformations. And the dermal skin transmissions studies illustrated that 3% of the amount of the chemical that gets on a person’s skin makes its way into the bloodstream. This was solid information and would help our case, but what we really needed to find were those rat studies.
As I mentioned earlier, the biggest obstacle was the filing index. Documents were not filed in any rational manner. To the contrary—they were intentionally filed in an irrational manner so that critical documents would be nearly impossible to find. It became clear to us that while critical documents were filed in a way that kept them hidden from outsiders, there still had to be a system in place to make sure they were properly mislaid. Otherwise, how would the librarian know how to misdirect us?
Shortly before we were about to pack it in, I stumbled across a stack of papers marked “Special Luncheon Memo(s)” that had several attachments stapled to them. These appeared to be suspiciously out of place, so I began flipping through them, one page after the other.
“Hey, look at this!” I shouted across the room to Marjorie. “I think I found the rat studies!”
And I had.
They were the studies that Robert Staples, the head of toxicology for DuPont, had conducted in 1980 and 1982, and they were cleverly hidden under special luncheon memos where no one else was likely to search. Clearly, we needed to take Staples’s deposition. I now felt that we were in a strong enough position to make our case—that it was a good a time to pull the trigger and let the show begin.
After three weeks of combing through hundreds of thousands of pages, I came up with 80,000 pages of relevant material that I wanted to use, and I earmarked it as evidence. When I told the librarian about my needs, she smiled and said, “No problem.” I figured they’d send me a bill for the usual 10 cents a page, along with copies of everything I had put aside.
Marjorie and I left Delaware and waited for the 80,000 pages we had selected to arrive. We needed those documents, which DuPont had to deliver to us within a certain window of time to be compliant. They agreed to send the documents; however, they sent me a bill for $80,000, which was equivalent to $1 per page, not the standard 10 cents a page I was used to paying everywhere else.
When the bill arrived, I thought it had to be some kind of mistake. Surely they had made an error. But they hadn’t. The cover letter stated that I was required to pay the full amount in advance or they wouldn’t send me the documents. DuPont knew we were under a tight discovery schedule, with several pending motions that could kill our case without those documents.
I went bat-shit crazy and began bitching and complaining to my staff like a lunatic on the loose, which is exactly what they expected me to do. Regardless, I didn’t want DuPont to perceive any weakness on our side. I contemplated going to the judge, but we didn’t have the time—nor was there any assurance it would help. After some deep thought and deliberation, I decided I would turn their hoped-for weakness into a strength.
Even though it would put a financial strain on me and I wasn’t happy about it, I prepared a check for the full amount and placed it in a FedEx envelope to go out that day. I put a one-line note inside that read, “Enclosed you will find a check in the amount of $80,000—I expect the documents as agreed by 5:00 p.m. tomorrow.”
This was part of the DuPont litigation strategy: Make the case impossible at every turn, both physically and financially.
I’d heard from a friend that DuPont had been snooping around, looking up my tax returns to see just how far they could financially push me and our firm. Thankfully, we were still making really good money. Little did they know that I could and would endure their wrath, come hell or high water.
It had been made very clear who I was dealing with—a bunch of ruthless bastards who were out to ruin me before I could take them down for what they had done to little Johnny Castillo.
From where I stood, that just meant they were worried because they knew I was onto them and had a good shot at winning this case. It was only after I paid for the documents that I think the defense lawyers began treating me with a little respect. None of their nonsense was working, and they must have realized that I was crazy enough to see this through to the bitter end.
In my next post, I will take you through more of the discovery process – including the results of those 80,000 pages of documentation I had procured.
You can find a lot more about the story of this case in my book, Blindsided, from which this blog post is adapted.