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


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.


Written by:

Published In:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Kroll Ontrack Inc. | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.