ESI Disputes Continue In Lawsuit Alleging $350 Million in Damages
The ESI disputes that have plagued the parties and the court in Procaps v. Patheon Inc., Case No. 12-24356-CIV-GOODMAN (S.D.Fla. April 24, 2015) continued last month when Plaintiff Procaps refused to allow Defendant Patheon to depose its court-ordered computer forensics expert. (Check out ILS’s previous articles here and here discussing Procaps’ failure to issue a litigation hold for over two years after filing its 2012 lawsuit alleging over $350 million in damages, its failure to have its US lawyers consult with its primary office in Columbia regarding search terms, and its admission that its ESI search efforts were inadequate, all of which led the court to appoint a Special Master and an independent computer forensics expert.)
The court-ordered computer forensics expert had filed a lengthy and highly-technical expert report. It noted that Procaps had deleted nearly 200,000 emails, PDFs, Microsoft Word, Excel and Power Point files after it filed its lawsuit in October 2012. Of these documents, 5,700 had a search term in the title, which would have made them subject to production. The report also noted that the same day the court ordered the parties to implement a litigation hold in 2014, Procaps deleted over 17,000 files, at least 278 of which had search terms in their titles.
Patheon sought to depose the forensic expert to support a potential motion for spoliation sanctions. Procaps objected, arguing that a local rule prohibited the deposition because Patheon had delayed in seeking the deposition, that no reasonable justification existed to compel the deposition, and that Patheon had already exceeded its deposition limits.
The Southern District of Florida first noted that FRCP 706(b)(2) permits parties to depose expert witnesses, and that the local rule regarding delay is permissive, not mandatory. Accordingly, the court ordered that Patheon could depose the expert witness, concluding that it would be beneficial to the court (and the parties) to have the expert deposed in preparation for trial given the complex ESI issues.