When Does the Duty to Preserve Evidence Begin in an MDL?
An order about electronic discovery was released in the transvaginal mesh multidistrict litigation In Re: Ethicon, Inc. Pelvic Repair Systems Product Liability Litigation, MDL No. 2327 (S.D.W.Va. February 4, 2014). The plaintiff steering committee alleged that Defendant Ethicon engaged in electronic discovery spoliation by failing to issue an adequate litigation hold and by allegedly losing or destroying electronic data of twenty custodians.
Regarding the issuance of the litigation hold, there were a few issued throughout the entire decade, when a few state court cases regarding transvaginal mesh product lines “TVT” and “Prolift” began. Let’s look closer at the timeline:
- May 22, 2003: Document preservation notice was sent after a single lawsuit was filed regarding the TVT line
- January 2004: TVT single case settles out of court
- April 27, 2006: New TVT case filed
- April 30, 2006: New litigation hold issued regarding the TVT line
- February 21, 2007: Third TVT case filed
- April 30, 2007: New document preservation notice issued regarding the TVT line
- August 2007 and August 2008: The TVT cases are dismissed (one by summary judgment, one voluntarily)
- April 2008: Five lawsuits filed in New Jersey state court about TVT and Prolift lines
- April 21, 2008: New document preservation notice issued by Ethicon
- 2009: Forty-five new cases filed
- October 2010: MDL established with over 60 cases
- February 2011: Ethicon issues additional Hold Notices for the TVT and Prolift lines
The court held the duty to preserve evidence for the current MDL arose on April 30, 2007 regarding the TVT line and on April 21, 2008 regarding the Prolift line. Although three cases involving TVM were filed before the MDL cases began, such “isolated lawsuits” alone were insufficient to trigger the litigation hold for the MDL on such early dates. The court found it was not reasonable for Ethicon to believe that after an isolated lawsuit that a “large scale nationwide products liability litigation was down the road.”
So the court found that the duty to preserve evidence began concurrently with the dates the defendants’ counsel sent the document retention notices. But were such notices heeded? Did the defendants enact sufficient document and electronic data retention procedures, or is it true that “the process was riddled with holes”? (Spoiler alert: it’s the latter, quoted from page 12 of the order.) Our discussion of this 2/4/14 eDiscovery order in the TVM MDL continues throughout the week.