Archive - December 2014

Key Insight: Despite defendants? claims that litigation regarding claims of bladder cancer were not reasonably foreseeable until 2011, and thus the preservation obligation did not attach as to evidence related to those claims, the court found that the duty to preserve began in 2002, when defendants disseminated a broad and general litigation hold requiring the preservation of documents and ESI which ?discuss, mention, or relate to Actos? and that documents destroyed after that (including the files of 46 employees) were spoliated; court ordered that the jury would hear about the destruction and be instructed by the court on how to proceed (instruction would be crafted after hearing all the evidence)

Nature of Case: Products Liability

Electronic Data Involved: ESI (46 “custodial files”)

Key Insight: Circuit court found no abuse of discretion for District Court?s imposition of default judgment (or its prior finding of contempt) – which was a more drastic sanction than was originally imposed by the magistrate judge – where Defendants? discovery behaviors, including failing to produce documents as ordered, avoiding depositions, and failing to preserve potentially relevant ESI (and providing conflicting stores about what happened to the hard drive, including that it had been taken apart and given to a defendant?s children to play with) justified the harsh sanction imposed

Nature of Case: Fraud

Electronic Data Involved: ESI on hard drive (emails), bank records