This is our name for a classic case theme; for a compelling story that provides motive, shows intent. It’s human nature to want to know why something happens, why a company took, or didn’t take a particular action. The jury, the press, the public want a motive, they want to know why. It’s a classic tale that’s been told in many courtrooms.
The story itself is pretty straightforward: one party paints the other as so greedy, so driven by the bottom line as to place its own profit over the well being of people. But while the theme itself is straightforward, finding the supporting documentary evidence is a complex endeavor.
A profits over people language investigation is one of the most sophisticated and complex searches we’ve undertaken. It’s the epitome of the marriage between linguistic and legal subject matter expertise. In this blog, we provide an overview of our approach.
To recap, a corporation can appear to be putting the all-mighty dollar before human safety and dignity in a number of ways. Again, we call this profits over people. This case theme involves a corporation’s indifference towards it’s customers, clients, vendors, or the public in a quest make money.
In a variation of the theme, a company can also exhibit disregard for its own workers, perpetuating a corporate culture based on greed, hostile working environments, unfair labor practices, institutionalized corporate caste systems, and other systemic inequality within its own borders.
All of these things are fodder for litigation. If profits over people is a case theme central to your litigation, you’ll be obligated to uncover evidence that supports, or refutes, this claim. This theme is one that entails a lot of different moving parts, different in every case, or even different in every deposition. It can be nebulous with respect to how it plays out in ESI. You can’t simply type “profits” or “people” or “profits w/5 people” and expect anything interesting to come of it. One thing is certain: to find this evidence, you need to think like a detective.
People use language to express ideas and information. People use their words (in addition to their deeds, which they also write about) to accomplish both good things and bad things. So, when we investigate profits over people, what we are really doing is investigating people, as either individuals or as a group or entity.
So the first thing to do when investigating language usage for evidence in this context, is acknowledge that you’re not *just* sifting through text-based language. You’re scrutinizing linguistic evidence to prove or disprove agency. That said, let’s look at how profits over people plays out in a Big Pharma products liability situation.
Before diving in, let’s be clear here: companies have to make money. There’s nothing wrong with making money. BUT, when the balance between making money and corporate responsibility shifts into “all bottom line, all the time” territory, then a company is vulnerable. It has moved into a dangerous neighborhood where the neighbors (lawyers, shareholders, employees, regulatory agencies, the public, politicians) aren’t exactly going to roll out the welcome wagon.
Let’s consider what it looks like when a Big Pharma company is potentially putting their bottom line over consumers. As I mentioned upstream, the first step in a profits over people investigation is to shift your focus from the “what” (the bottom line) to the “who.” You’re just as interested in “who” is talking about the bottom line, as much as the bottom line itself. For example, accountants and finance departments talk about money. Shareholders want to hear about money. This is normal. No redflags raised here. BUT, what about the scientists? The ones who work on clinical trials, the ones who liaise with regulatory agencies? Are they talking about money? That is potentially interesting content.
Secondly, if scientists are talking about money, what’s the context? Are they talking about their budgets? That’s probably normal. Are they talking about not conducting a particular study because it won’t have an impact on sales, or because it will potentially have a negative impact sales? Are the talking solely about the commercial benefit of some action or inaction? That’s worth looking into.
Third, how do these conversations align with a broader picture? Once you have the first two pieces to the puzzle, you now have to broaden the scope of your investigation. Are the money-related conversations these scientists having an anomaly? Or are these conversations typical and possibly indicative of some bigger corporate trend? How are folks responding to these conversations? Was the decision to halt the study or test an abrupt one, with no opportunity for discussion? Or is there evidence that it was an informed decision, put to committee and decided on after a lively debate? The journey is just as important as the destination.
This is just one of several investigative frameworks that could uncover a profits over people narrative: scientists talking about money-related and commercially-driven issues, such as not conducting a particular post-marketing study because such a study wouldn’t be commercially relevant to drug X sales and marketing. Or perhaps the scientist’s recommendation over-ruled and the study went ahead. The next step is finding evidence of whether or not this is an isolated incident or par for the course.
When you’re investigating a broad theme like profits over people, remember it is not just what is being talked about, it’s who is doing the talking and what is the broader context. Don’t simply flash one “hot doc” and expect the story to be told. One document is just the a part of the narrative. What you’re looking for are investigative leads that demonstrate a bigger picture, a story of either a few people misrepresenting their department or company, or a corporate culture that encourages and even dictates putting money above everything else. Or you could uncover evidence that there was no wrong-doing at all.
Next week we’re going to focus on one of our favorite types of investigation: Taking the temperature of a company. This involves investigating things like the morale of a company’s employees, the rumor mill, the synergy between departments, etc…