Court Concludes that “at least in the Seventh Circuit,” the Duty to Preserve is Triggered “when a litigant knew or should have known that litigation was imminent” as Opposed to “Reasonably Foreseeable”

In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., MDL No. 2385, 2013 WL 5377164 (S.D. Ill. Sept. 25, 2013)

In this case, the court found that the duty to preserve arose after the at-issue information was destroyed in accordance with Defendant’s document retention policies and that an adverse inference was not warranted.  Considering the proper standard to employ when assessing when the duty to preserve is triggered, the court concluded that “the duty to preserve is triggered only when a litigant knew or should have known that litigation was imminent (at least in the Seventh Circuit).”

The Plaintiffs’ Steering Committee (PSC) sought to compel Defendant’s production of a former employee’s (Hashad’s) “custodial documents” or for “such other relief as the Court deem[ed] appropriate” in the event that such production was not possible or that the documents had been destroyed.  Defendant responded that the data had been destroyed in accordance with its document retention policies before the duty to preserve was triggered.  The PSC asserted that the duty to preserve had been triggered at the time of the destruction and that sanctions were therefore warranted, specifically an adverse inference.

Sparing the details, the court determined that Defendant’s duty to preserve arose after the documents had already been destroyed in accordance with its document retention policies.  The court further concluded that there was no evidence of bad faith (as is required for an adverse inference in the Seventh Circuit) and that no sanctions were warranted.

In the instant case, there is no evidence of bad faith.  The documents appear to have been deleted in accord with [Defendant’s] document retention policies.  Accordingly, even assuming [Defendant] was under a duty to preserve when Hashad’s custodial documents were destroyed, a spoliation inference would not be appropriate.

Notably, in the course of its analysis, the court considered the proper standard to be utilized to determine when the duty to preserve was triggered.  Defendant argued that “the duty to preserve arises when a litigant knew or should have known that litigation was imminent.”  (Bold emphasis added.)  The PSC argued that “the preservation obligation is triggered when a litigant knew or should have known that litigation was reasonably foreseeable.”  (Emphasis added.)  After analysis of the two Seventh Circuit decisions on point, the court agreed with the defendant:

In the Court’s view, the Seventh Circuit’s decision in Norman-Nunnery, tips the balance in favor of applying the standard proposed by [the Defendant]—that the duty to preserve is triggered only when a litigant knew or should have known that litigation was imminent (at least in the Seventh Circuit).

The court indicated, however, that “whether the Court applie[d] the ‘reasonable anticipation’ standard or the ‘imminent litigation’ standard, [did] not alter the Court’s decision  on whether to impose a  spoliation inference” because Defendant “had no reason to anticipate litigation—imminent or otherwise in November 2011 (when Hashad’s file was destroyed)” and because “even assuming [Defendant] owed a duty to preserve in November 2011, there is no evidence of bad faith.”

Upon Defendant’s indication that some responsive documents were available and that attempts were underway to restore disaster recovery backup tapes that may contain the information sought, the court ordered the production of any such available information.  Further, in light of concerns that Defendant was limiting its production improperly, the court ordered the submission of attestations from lead counsel for the defendants affirming that the defendants had not been producing only those documents that referenced Pradaxa and that document productions to date and in future had and would include all discoverable materials.