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As commentators lodge their support or dismay over proposed changes in federal e-discovery rules, cautionary tales continue to be written. When it comes to inadvertent disclosure, practitioners have lessons to learn from $900,000 in sanctions levied against two defendants whose failed data-preservation efforts, the judge said, constituted bad-faith violations of case management orders.
The sanctions were entered against two defendants in the Pradaxa Products Liability Litigation, which is in multidistrict litigation before U.S. Judge David R. Herndon in the Southern District of Illinois. There are 1,700 claims before the court arising from excessive bleeding plaintiffs say was caused by Pradaxa, a blood thinner. The court addressed a number of violations in this opinion and is a must-read for e-discovery watchers. Among the violations was the inadvertent deletion of text messages by the defendants, which the court said was a failure to properly exercise a litigation hold. [United States District Court, S.D. Illinois. In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, MDL No. 2385, 3:12–md–02385–DRH–SCW, Filed December 9, 2013.]
While acknowledging that turning off automatic deletions of emails might trigger sanctions, the companies argued that not saving text messages would not MISSING WORD(S) HERE? because text messaging is a less common form of communication and, in any event, gathering them would be burdensome. Not moved, Judge Herndon said it does not matter where text messaging ranks among modern modes of communication. He said employees used text messages―- on company-issued cell phones―-to some degree for business communications. Also, the Plaintiff Steering Committee (PSC) expressly requested text messages, the judge said.
“There is no question the defendants owed a duty to preserve this material,” the judge said. “ … If the defendants felt the PSC's request for text messages was overly burdensome, they should have filed the appropriate motions with the Court. The defendants cannot simply make a unilateral decision regarding the burden of a particular discovery request and then allow the information that is the subject of the discovery request to be destroyed.”
“The defendants' failure to intervene in this automatic process places them outside the ‘safe-harbor’ provision provided for in Federal Rule 37(e),” the judge said in justifying the sanctions.
The companies also argued that the text messages in question -- notes sent between company employees and physicians -- were “non-substantive” and that such activity is barred by company policy. Failure to hold on to the message was harmless, the defendants said.
Again, Judge Herndon was not swayed, saying “the defendants do not get to choose which evidence they want to produce and from which sources. The PSC is not required to simply accept as true the assumption that all employees followed the ‘no substantive communications with physicians’ policy. Nor is it required to accept as true a deponent's claim about the content of her electronic communications. It is certainly common knowledge that texting has become the preferred means of communication. The PSC is entitled to the discovery requested for, among other things, the purpose of impeaching the [defendants’] claims.”
In a more succinct opposition to the production of the texts, the defendants simply said they don’t believe they are required to produce them. Referring to an apparent trend in the litigation, the judge noted how the plaintiffs characterize the defendants’ data deletion approach as “better to beg forgiveness than ask permission.” The judge said the defendants should have responded with a specific objection when the plaintiffs originally asked for the texts.
Finally, the court addressed text messages on personal cell phones which some employees used for business communications on the road. The defendants “balked,” as the court put it, at the plaintiffs’ request to examine the phones.
“The litigation hold and the requirement to produce relevant text messages, without question, applies to that space on employees’ cell phones dedicated to the business which is relevant to this litigation. Any employee who refuses to allow the auto delete feature for text messages turned off or to turn over his or her phone for the examination of the relevant space on that phone will be subject to a show cause order of this Court to appear personally in order to demonstrate why he or she should not be held in contempt of Court, subject to any remedy available to the Court for such contempt,” Judge Herndon held.
- Make sure litigation holds match up with discovery requests.
- Review all possible locations of data requested, including personal devices.
- Do not assume courts will agree with the value you put on data.
- Do not delete data if there is any doubt about its potential value.
- Review systems that have auto-deletion functions.
- The existence of company employment policies does not prove that employees are following them.
- Know that often less formal or less common forms of communication are still communications.
- Do not wait to object to specific discovery requests you find burdensome.