Lawyers Bid for Exhibit A as Evidence Surfaces on EBay

After a heated bidding war on EBay, Mark Lanier recently paid $2,125 to win a 1941 naval machinery manual.

It sounds like a peculiar collecting hobby, but to Lanier it was serious business. The Houston lawyer, who sues companies on behalf of asbestos exposure victims, was bidding against a defense lawyer to get his hands on an evidentiary trophy filled with details on where and how asbestos was used aboard ships.

EBay may be best known as a place to buy bobblehead dolls, ancient Roman coins and millions of other idiosyncratic collectibles, but the world’s most famous Internet auction also has become an unlikely source for legal evidence. It’s a place where a growing number of lawyers bid--often against each other--for everything from smoking-gun documents to killer products.

While “evidence” is not one of EBay’s 18,000 product categories, lawyers who know what they are looking for can filter 11 million items by punching in keywords. There are dozens of active “asbestos” auctions every day. Asbestos lawyers aren’t the only ones shopping for evidence on EBay. A Los Angeles lawyer preparing lawsuits for lung cancer victims, for instance, recently bought a cache of old cigarette advertisements that he figures he can use to re-create for jurors the atmosphere in which his clients got hooked.

EBay is a particularly rich source of evidentiary ephemera for asbestos litigators, primarily because their sickest clients, those with an incurable and rare form of cancer, don’t develop symptoms until decades after they were exposed to the hazardous mineral fiber. A virtual time capsule, EBay holds out a seemingly endless supply of commercial and household artifacts, historic corporate documents, maintenance manuals and product catalogs that can help asbestos lawyers pin down where clients encountered the hazardous material--and who can be held liable.

“There is no better place to shop and buy real evidence than on EBay,” Lanier said.

EBay’s evidence market still is a largely unknown phenomenon. At the Internet marketplace’s headquarters, where the stated mission is to help “practically anyone trade practically anything on Earth,” spokesman Kevin Pursglove said he was unaware that EBay had become an evidence bazaar. Detecting such highly specialized, micro markets “is a bit of a challenge,” he said, with millions of items for sale on any given day.

It is not widely known within the legal community either. “You can quote me as saying, ‘Wow,’ ” said Deborah Hensler, a Stanford University law professor who tracks legal trends.

Surprise aside, Web-trolling for evidence is a logical extension of lawyers’ increasing use of the Internet for everything from identifying causes of action to publicizing class-action lawsuits, Hensler said. “Technology is changing the dynamics of litigation.”

Stephen Gillers, vice dean of the law school at New York University, said he expects EBay evidence sleuthing to grow. “Both the ability to locate evidence and the ability to get it quickly are valuable to lawyers and their client,” he said.

Most asbestos injury cases are settled before reaching a jury verdict, but lawyers say the evidence they gather online often can help tip the balance toward a favorable settlement for their clients.

Al Brayton, a Novato personal-injury lawyer, said he first used EBay to hunt for evidence a couple of years ago when he took on the case of an Oregon farm wife who was dying of mesothelioma, the rare cancer caused by asbestos. The only possible source that Brayton could identify was a hairdryer that the woman had purchased before the substance was banned for that use in 1980. But his client no longer had the suspect hairdryer.

Using EBay’s “personal shopper” feature, Brayton publicized his desire to buy a hairdryer identical to the model she remembered using. “Within four or five hours, I had four responses and bought three pre-1980 hairdryers,” he said. “We found a hairdryer from the same manufacturer and we were able to settle the case.” Brayton said his staff now searches the Web auction for evidence every couple of days.

Lawyers from the other side of the bar also search for help in defending companies against allegations of decades-old asbestos use.

“You are talking about activities that occurred 20, 30, 40 years ago,” said Eliot S. Jubelirer, a San Francisco lawyer who represents corporations. “There’s nobody alive today who was in those companies years ago.”

Lawyers who frequent EBay evidence auctions say the number of bidders has grown noticeably over the past 18 months.

“There were not a lot of people bidding on these things early on, and you could pick things up very reasonably,” Brayton said. “Today, you get not only the plaintiffs’ bar bidding, but you have the defense bar bidding. The prices have gone up a lot in the last year. A lot.”

The escalating prices, particularly for items that contain or describe the use of asbestos, are drawing more merchandise out of attics and garages.

“The market has grown dramatically from what it was a year ago,” Brayton said. “People are now catering to the market and going to flea markets all over the country and looking for things with asbestos in them that they can sell.”

The creation of such niche markets is one of EBay’s most valuable functions, said Florian Zettelmeyer, an assistant professor of marketing at UC Berkeley. “What these lawyers have done is tap into the core strength of the Internet, which is to pull together suppliers,” he said.

Ernie Chmura, a Chicago-area computer programmer, became a purveyor of asbestos evidence almost by accident. He initially went to EBay’s Web site last year to sell “three generations of junk” and his prized electric train collection to help pay for funeral and medical expenses after his wife died of cancer.

As he searched the Web site to see what similar items were fetching, he noticed a 1949 plumbing supply catalog, with a section on asbestos products, that went for $350. Chmura pulled one just like it out of his late father’s attic and put it up for auction. “From a sales standpoint, only fishing equipment and the book ‘Dracula Was a Woman’ were as nutty--way out of expectation,” Chmura said.

It’s impossible to know how many lawyers are plying EBay for evidence, but it’s hard to believe anyone spends more time--or money--at this form of discovery than Mark Lanier. The Texas lawyer paid $1,025 recently to win a 47-year-old pack of sealed cigarettes believed to have asbestos filters. The 1955 Kent Micronites may become Exhibit A in litigation he is preparing on behalf of more than 20 clients who have asbestos-related cancer and who smoked the brand.

Last month, he paid $1,325 for a 1951 General Electric Supply Corp. wiring materials and power apparatus catalog, with pages of advertisements for asbestos-containing products from elevator control cables to yarn.

Lanier’s most prized EBay purchase is a 1958 draft report of an asbestos industry-commissioned study that linked asbestos to cancer. Only 63 copies of the draft were prepared, stamped “restricted” and numbered, one through 63, so that they could be accounted for as they were circulated for industry review.

Each copy was to be returned and destroyed. When the study was published a year later, it said the results showed that asbestos does not cause cancer, Lanier said. The report was later shown to have been a lie when the test results came to light and insiders testified to the falsification of the final report.

But everyone believed that all 63 draft reports had been destroyed until a couple of years ago when Lanier spotted one while surfing EBay auctions. He eagerly paid more than $3,000 to obtain it.

“Lo and behold--restricted copy No. 8 was never destroyed,” he said. “I keep it locked up. I have a slipcover on it. I take it to trial and tell the story like it’s the Holy Grail. Then I pull out the actual restricted copy. It’s irreplaceable. It’s the only one that’s known in the world.”

Lanier has no idea where the document came from. Because buyers and sellers use handles on EBay, the exchanges can be anonymous.

The “power seller,” as EBay describes high-volume vendors, operates out of Thetford Mines, Canada’s asbestos-mining capital, and uses a cryptic handle. The seller did not respond to e-mail requests for an interview.

Regardless of where it comes from, Lanier said EBay evidence is a boon to the development of cases. In the days before he discovered EBay, Lanier would fly a team of investigators to search for documents in the public libraries in the hometowns of target companies.

“We had to convince the librarian to take things out of the case to take photographs and Xeroxes for hard data,” Lanier said. “I’ll still do that kind of stuff, but generally what I can get off EBay is better than what I can find elsewhere. It’s a phenomenal thing.”

Noticing Lanier’s penchant for asbestos items on EBay, an Ohio engineer offered to sell him a collection that he described as his personal museum. Lanier paid $5,000 for the collection that includes household appliances, dozens of samples of different floor and roofing tiles, a firefighter’s uniform, a baseball mitt and even an action-figure believed to have appeared in the 1960s known as “Asbestos Man.”

“He came with a comic book, where Asbestos Man is the villain against The Torch, who is in the Fantastic Four,” Lanier said. According to the story line, he said, “the Torch can’t burn Asbestos Man. I looked at it as, much like the tobacco industry, the asbestos industry [tried] to get even children sensitized to their product. I was very surprised to see that.”

Lanier, who has the items sealed in plexiglass to prevent the release of hazardous fibers, wastes no time introducing his collection at trial, often using products as props in a pedagogic shtick he puts on during his questioning of potential jurors.

“I’ll ask jurors, ‘Who has worked around asbestos?’ and get 20% to raise hands,” he said. “I’ll bring 20 to 30 products into the courtroom [and] then I say where they put this stuff. When I’m done, 100% of the people will realize they’ve been exposed to asbestos. It helps the jury understand this is not just an issue for the plaintiff in this case. But this is really a larger issue that commands attention.”