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.
The court then addressed four categories of alleged discovery violations for which plaintiffs sought substantial monetary sanctions. These violations included defendants’ alleged failure to:
- identify as a custodian and preserve potentially relevant evidence in the possession of a high-level scientist once employed by a vendor intricately involved with the product;
- preserve evidence relating to and/or for untimely disclosure and production of material in the possession of the defendants’ sales representatives, clinical science consultants and medical science liaisons;
- produce proper data on one of the defendants’ shared networks in a timely manner; and
- preserve and/or produce in a timely manner business-related text messages on certain employees’ cell phones.
Ultimately, the court imposed a $931,500 fine based on the number of cases pending within the MDL ($500 per case), an award of fees and costs associated with the request for sanctions, and required that the defendants produce their employees for depositions in the United States. Though these sanctions are certainly not insignificant, the court’s extensive analysis (which we will not recount here) suggests a few New Year’s resolutions for handling discovery in the electronic age which, if followed, could be priceless.
Resolution No. 1: Once triggered, treat the duty to preserve as an active, ongoing process
- Develop an understanding of your client’s information management systems and how those systems are used in the client’s everyday business.
- Learn the role of employee groups or operating units in your client’s business — including key employees, departments, divisions, and foreign offices, facilities or entities — and how they generally communicate with each other.
- Review your client’s record retention policies, practices and procedures, including how it handles data generated by employees, whether employees use company provided or personal devices for business purposes, how it treats data shared with vendors and how it handles data generated by employees as they depart, whether it has a process for automatic data deletion and how that process can be stopped once a litigation hold is issued.
- Implement a timely and sufficiently expansive litigation hold when litigation is reasonably foreseeable or once a lawsuit is filed. This hold should be tailored to the claims and defenses raised by the lawsuit.
- Update the list of key custodians, adding custodians to those required to preserve information, if necessary, as the potential for litigation increases, the potential litigation changes, a lawsuit is filed, its scope expands or if discovery suggests additional custodians.
- Involve appropriate information technology employees and third parties (i.e., vendors), thoroughly apprising them of their ongoing obligations and requirements for preserving and producing information, however retained.
Resolution No. 2: Keep custodians informed and engaged in the complete process
- Identify key custodians when litigation is reasonably foreseeable or immediately after a lawsuit has been filed. When making these determinations do not simply rely on custodians identified by your opponent.
- Clearly communicate with custodians about the scope of their preservation obligations by providing an expansive checklist of the places to search for information, the devices to check and the process for preservation.
- Consistently follow-up with custodians and litigation hold recipients, regularly reminding them about their ongoing obligations and confirming compliance with the hold provisions until the litigation hold is lifted.
Resolution No. 3: Cooperate, communicate and be candid with the court and opposing counsel
- Engage opposing counsel early on in litigation in an effort to agree upon the scope of discovery and to possibly obtain an agreed preservation order.
- Cooperate with opposing counsel to develop a clear production protocol that will minimize future disputes, limit duplication of efforts and/or avoid significant judicial involvement. If problems develop or persist in the preservation and production of data, address the issues systematically to avoid future problems.
- If production is delayed or mistakes occur, be candid with the court, your opponent and your client about the issue, rather than trying to obfuscate, hide or avoid it.
- When presenting your position on the scope of a litigation hold or the production of materials, focus on making good faith arguments.
Keeping these three resolutions may make handling your client’s preservation and production obligations a little less stressful. What a great way to start the new year!
1 2013 U.S. Dist. LEXIS 173674 (S.D. Ill. Dec. 9, 2013).
2 In an earlier opinion, the district court addressed a request for an adverse inference based on defendants’ destruction of documents as permitted by their document retention policy. In re Pradaxa, MDL. No. 2385, 2013 WL 5377164 (S.D. Ill. Sept. 25, 2013). The district court denied this request after finding no evidence of bad faith and held that in the Seventh Circuit the duty to preserve is triggered when a litigant knew or should have known that litigation was imminent.