Top 5 Ediscovery Case Summaries - November 2013: Illinois: In the Seventh Circuit, the Duty to Preserve is Triggered When Party Knows or Should Have Known Litigation was Imminent

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In re Pradaxa (Dabigatran Etexilate) Prods. Liab. Litig., 2013 WL 5377164 (S.D. Ill. Sept. 25, 2013).

In this multidistrict product liability litigation, the Plaintiffs’ Steering Committee (PSC) sought to compel production of “custodial documents” from a former employee of a defendant. The defendants asserted that the former employee’s files were deleted in accord with their document retention policies no later than November 2011—well before it received the first demand letter related to this litigation in February 2012. Conversely, the PSC contended that there were numerous events predating the destruction of the documents that put the defendants on notice that litigation was “reasonably foreseeable,” and the PSC sought an adverse inference for spoliation. Reviewing the arguments, the court concluded that the appropriate standard in the Seventh Circuit for determining whether the duty to preserve arose is whether the defendant “knew or should have known litigation was imminent”—not “reasonably foreseeable” as the PSC asserted. Furthermore, the court found that even if the defendants had owed a duty to preserve in November 2011, there was no evidence of bad faith, and ultimately held that sanctions were inappropriate. Instead, based upon evidence that the defendants were working to recover data from disaster recovery tapes, the court ordered the production of any relevant, non-privileged material recovered from those efforts.