In February, there again was a number of interesting spoliation decisions, including an order permitting the defendants to assert a counterclaim for spoliation based on the plaintiffs’ alleged failure to preserve relevant information, another sanctions order in multi-district products liability litigation in which the court looked closely at the breadth of litigation hold notices issued by the defendant in previous litigation, and a sanctions order finding culpable conduct based on the defendant city’s failure to have its IT policies comply with state public records laws. There also were key e-discovery decisions addressing undue burden, taxable costs, format of production, and predictive coding.
Zecotek Imaging Systems PTE Ltd. v. Sain-Gobain Ceramics & Plastics, Inc., No. 12-CV-1533 (N.D. Ohio Feb. 28, 2014). The court permitted the defendants to assert a counterclaim for spoliation under Ohio law based on the plaintiffs’ alleged failure to preserve documents and information relating to the plaintiffs’ patent infringement claims. According to the defendants, the plaintiffs failed to preserve and/or destroyed emails and other documents relating to the inventorship and ownership of the patent in suit and infringement of the patent, and these actions deprived the defendants of relevant and potentially exculpatory evidence. The court noted that while Ohio law imposes a duty on a plaintiff to preserve evidence, authority is mixed whether a plaintiff’s failure to comply with this duty can give rise to a cause of action against the plaintiff. The court concluded that under Ohio law a defendant is not per se prohibited …
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The new year is off to a fast start with a number of decisions addressing key e-discovery issues, including a decision from the Seventh Circuit regarding the Dec. 9, 2013 sanctions order issued by the district court in the In Re Pradaxa multi-district products liability litigation and a spoliation finding against the defendants in the In Re Actos multi-district products liability litigation. There also were decisions regarding the violation of the protective order in the long-running Apple v. Samsung “big-ticket patent litigation,” the recovery of e-discovery costs, undue burden and the form of production.
In Re Actos (Pioglitazone) Products Liability Litigation, No. 11-md-2299 (W.D. La. Jan. 27, 2014). The court sanctioned the defendants for spoliation after 46 custodial files and the ESI in those files were lost, destroyed or otherwise rendered inaccessible. The deleted files belonged to high-ranking officials heavily involved in the development, sales, marketing and promotion of the drug Actos® as well as sales representatives whose day-to-day work involved marketing and distributing Actos in the marketplace. The defendants argued that they did not have a duty to preserve these files because the duty to preserve documents relating to “bladder cancer” did not arise until the summer of 2011. The court rejected that argument and pointed to a “sweeping” litigation hold that the defendants issued back in 2002 in connection with other Actos-related personal injury claims which broadly covered “any and all documents and electronic data” relating to Actos. In ruling on the plaintiffs’ motion for …
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Many people use the start of a new year to resolve to improve their diet, get more sleep and exercise more. Professional resolutions for attorneys often focus on improving efficiency, expanding networks and areas of expertise or simply submitting their time entries properly. A decision late last year in the In re Pradaxa Products Liability Litigation suggests some potential professional resolutions for litigators and in-house litigation counsel to consider when litigation arises or is reasonably anticipated.1
Pradaxa is a multidistrict products liability action pending in the Southern District of Illinois. The case involves, among other things, the safety of a blood thinner and a pharmaceutical manufacturer’s alleged representations about the efficacy of that product. This complex case involved extensive discovery involving millions of documents and hundreds of witnesses and, not surprisingly, discovery issues and disputes arose that were not particularly unique.
In a detailed opinion reviewing the history of the discovery disputes brought to its attention by the plaintiff’s steering committee, the district court commented that it had been “exceedingly patient and, initially, was willing to give the defendants the benefit of the doubt” on the discovery issues. For example, this was not the first opinion in this action addressing defendants’ discovery responses and document preservation efforts.2 Indeed, the court had “warned the defendants in the past, when such conduct continues, there is a cumulative effect” that the court not only can but also should take into account.…
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