When a serious product-related incident occurs, companies naturally focus on immediate priorities, including protecting people, securing the scene, restoring operations, and determining what happened. These are the right priorities. But what many organizations underestimate is how the investigation conducted during the first hours and days following an incident can shape the outcome of litigation months, or even years, later.
As a product liability defense attorney representing manufacturers and businesses throughout Missouri and Illinois, I’ve found that many cases are won or lost not because of the underlying incident, but because of the quality of the investigation that followed.
HERE ARE FIVE MISTAKES I COMMONLY SEE:
- Failing to Preserve the Product and Related Evidence
The product itself is often the single most important piece of evidence in a product liability case. Yet I routinely see situations where equipment is repaired, discarded, altered, returned to service, or disassembled before anyone considers the litigation consequences. The same applies to replacement parts, packaging, warnings, manuals, maintenance records, photographs, surveillance footage, event data, electronic control modules, and inspection reports. This type of modification to the product or loss of written materials, intentional or not, can constitute spoliation of evidence and can lead to potentially severe consequences in the event of a lawsuit arising from the incident.
Both Illinois and Missouri courts recognize that parties have obligations to preserve evidence once litigation is reasonably foreseeable, although the legal standards differ between the states. Illinois recognizes an independent claim for negligent spoliation under limited circumstances, while Missouri generally reserves spoliation remedies for intentional destruction or bad faith conduct. Despite those differences, the practical lesson is the same: Once a serious incident occurs, evidence should be treated as though it may eventually appear in a courtroom.
Developing a documented evidence preservation protocol and following it consistently can eliminate disputes over chain of custody and significantly strengthen the credibility of an organization’s investigation.
- Allowing Speculation to Become Documentation
Immediately after an incident, everyone wants answers. Unfortunately, the earliest explanations are often incomplete or simply wrong. Emails, text messages, draft reports, meeting notes, and internal communications frequently contain educated guesses that later become discoverable during litigation. Opposing counsel will often focus on those early statements, even when the investigation ultimately reaches different conclusions. The most effective investigations separate objective facts from preliminary theories.
A post-incident investigation should document what witnesses observed and verified by the witnesses if possible. This can be done by having them hand-write their statement on a pre-prepared form or by having them read, correct, and sign a typed statement based upon prior interviews.
A complete investigation also works to preserve physical evidence. In some instances, this could require separate storage facilities for larger products or equipment. Your investigation should do well to avoid modifying, repairing, discarding, or destroying the condition of the relevant items without adequate documentation or notice to potentially aggrieved parties. Your investigation should also include the gathering of available (and relevant) data before it is overwritten or lost, including photographs, video footage, maintenance records, inspection reports, operator training records, work instructions, machine settings, production logs, electronic control data, software versions, environmental conditions, and any available sensor or event recorder information.
Data and information are only as good as their source, however. Thus, a complete investigation also includes attempts to verify the accuracy of the information before reaching conclusions. The objective is to develop a complete factual record that allows engineers, safety professionals, and legal counsel to determine what occurred based on evidence rather than assumptions.
Resist the temptation to identify the cause of an incident before the investigation is complete. An investigation gains credibility when its conclusions are supported by evidence, not assumptions or inaccurate data.
- Waiting Too Long to Assemble the Right Investigation Team
Many investigations begin internally before outside expertise is considered. That approach can work for routine incidents. It is far less effective when dealing with catastrophic injuries or worse, alleged product defects, or complex equipment failures. Depending upon the circumstances, early involvement from engineers, safety consultants, accident reconstructionists, human factors experts, metallurgists, testing specialists, and experienced legal counsel may prove invaluable.
Courts have recognized that once an organization undertakes an investigation under circumstances where litigation is reasonably foreseeable, preserving relevant evidence becomes critically important. Delays can result in the permanent loss of evidence that cannot later be recreated and which can lead to legal sanctions in later litigation. The best investigations are multidisciplinary from the beginning. Legal counsel, engineers, and safety professionals should work together to preserve evidence, identify key issues, and develop an accurate understanding of the incident before critical information is lost. These third-party professionals can also provide an added layer of protection in the event of litigation through attorney-client and attorney work product privileges, effectively protecting pre-conclusion analysis from discovery.
- Overlooking Electronic Evidence
Modern products generate enormous amounts of electronic information. Machine logs, PLC data, software versions, event recorders, maintenance databases, surveillance systems, access records, emails, text messages, cloud-based information, and metadata may all become relevant during litigation. Unlike physical evidence, electronic information may disappear automatically through routine overwriting or system retention policies.
Organizations should consider implementing litigation holds early enough to suspend ordinary deletion practices, where appropriate, and ensure that potentially relevant electronically stored information is preserved. Investigation checklists identifying initial investigation steps are simple, cost-effective resources to help ensure evidence isn’t lost. This can prove exceptionally helpful in cases of product misuse and helps avoid forgetting about potential evidence after serious injuries, when emotions and nerves have not yet calmed.
Both Missouri and Illinois courts increasingly expect parties to take reasonable steps to preserve electronically stored information once litigation becomes reasonably foreseeable. Electronic evidence is no longer supplemental. In many cases, it becomes the most important evidence available.
- Treating the Investigation as Separate from Future Litigation
An incident investigation serves many legitimate business purposes. It improves safety. It identifies operational improvements. It satisfies regulatory obligations. But it should also recognize an unavoidable reality: Serious incidents often lead to litigation. Every photograph, inspection report, witness interview, engineering analysis, email, and investigative memorandum may someday be reviewed by opposing counsel, expert witnesses, insurers, and perhaps a jury. That does not mean organizations should investigate defensively. It means investigations should be thorough, objective, carefully documented, and professionally managed from the outset.
Juries respond positively to organizations that conduct disciplined, evidence-based investigations. Conversely, missing evidence, inconsistent documentation, or avoidable preservation failures often become focal points that distract from the merits of the case itself.
Post-incident reporting must take into consideration the possibility that any root-cause analysis could become discoverable and may be admissible in a subsequent lawsuit. While the improvement of safety is of principal importance, it happens all too often that a report containing speculative conclusions or incomplete investigations paints inaccurate portraits of what really happened.
Final Thoughts
No investigation can eliminate litigation. A disciplined investigation can dramatically improve an organization’s ability to defend its decisions, preserve critical evidence, and present a credible account of what actually occurred.
Organizations should have an incident response plan that includes evidence preservation procedures, coordination between legal and technical professionals, and a thoughtful approach to documenting facts before drawing conclusions. The first few days after a serious product incident often determine how effectively a company can defend itself years later.