All this week, our blog has been reviewing the plaintiff electronic discovery disputes in In Re: Ethicon, Inc. Pelvic Repair Systems Product Liability Litigation, MDL No. 2327 (S.D.W.Va. February 4, 2014). Our last two posts reviewed the court’s reasoning in finding when the duty to preserve arose, and that defendant Ethicon was negligent in implementing and monitoring the holds. But was this enough to establish spoliation and if so, what sanction is warranted?
The court accepted that electronic data was negligently lost from nine custodians. Plaintiff was able to demonstrate relevancy by the proximate nature of the work with the custodians and the meager amount of data produced, for example:
- Worldwide director of regulatory affairs working on the TVT product line for two years (71 documents produced, but no email)
- Director of Medical Affairs involved in TVT (no data produced)
- Chief Medical Officer who supervised four departments (27 documents produced)
- Ethicon’s CEO from 2005-2010 (25 documents produced; her hard drive had been wiped clean after she departed)
- Salesmen from the TVT and Prolift devices (no data produced)
The court agreed that lost materials likely contained relevant information. However, the concept of relevance includes a second prong: the prejudice flowing from the lack of evidence. Plaintiffs encouraged the court to determine prejudice by the sheer volume of missing data coupled with the key positions held by those whose documents were missing. Defendants argued that this “missing” data actually existed and all crucial documents were produced: materials relating to product design, regulatory affairs, marketing, etc. The court somewhat agreed and noted that most of the lost information was email, which it claimed to be generally not necessary to prove a product liability case. (Others might disagree with that assertion!)
Although the court declined to impose a default judgment or across-the-board adverse inference instructions, the court did allow plaintiffs the opportunity to introduce evidence of the lost documents on a case-by-case basis to the trial judges. The trial judges can then review the individual case and enter an adverse inference instruction if warranted. The court did enter monetary sanctions and reasonable costs of the spoliation motion to plaintiffs.
Did You Know?: A pending amendment to Fed.R.Civ.Pro 37(e) would set a new standard for ESI spoliation across the circuits on 12/1/15.