IADC Amicus Brief Program

Abstract

II. THE DISTRICT COURT MISAPPREHENDED THE NATURE, SCOPE, AND TRIGGER OF THE DUTY TO PRESERVE. A. The District Court Held That Takeda's 2002 Litigation Hold Created a Duty to the Allen Plaintiffs to Preserve All ESI Relevant to Any Potential Actos Claim. This action, commenced by the Allen plaintiffs in 2011, was the first lawsuit to make a claim against defendants stemming from the onset of bladder cancer by users of In re Actos, 2014 WL 2872299, at *17. (8) Some 8,000 such lawsuits are now pending in federal and state courts, In re Actos, 2014 WL 5461859, at *37, and the federal cases have been given MDL treatment. During discovery, it was learned that Takeda had instituted a broadly-worded litigation hold requiring retention of all materials relating to Actos in 2002. The event spurring the 2002 litigation hold was a lawsuit by a party claiming damages from use of Actos resulting in liver cancer. In re Actos, 2014 WL 2872299, at *7. Takeda custodians were instructed to preserve any and all documents and electronic data which discuss, mention, or relate to Actos. Id. Even though the liver cancer claims were soon resolved, In re Actos, 2014 WL 2921653, at * 21, the litigation hold was refreshed in 2003, 2006, 2007, 2008 and 2011, In re Actos, 2014 WL 2872299, at *17, 20. Compliance with the very broad 2002 hold was less than perfect, resulting in the routine destruction of custodial files of 46 individuals after they had departed their Takeda employment. Id., at *15-16. Plaintiffs moved for sanctions based on the loss of these files, and in resolving the motion, the district court concluded that at the time the 2002 hold issued, Takeda had a reasonable anticipation of litigation for personal injury and death arising from use of In re Actos, 2014 WL 2921653, at *25. The court rejected the argument that Takeda did not reasonably anticipate suits involving bladder cancer until the first such suit was filed in 2011, because the litigation hold issued in 2002 was not restricted to a specific malady. In re Actos, 2014 WL 2872299, at *22; see also id. (This Court finds it need not determine when Takeda should have implemented a hold because Takeda, in fact, did implement a hold in 2002 and 'refreshed' it thereafter.) (emphases omitted). Thus, the district court concluded that, irrespective of what the law on preservation trigger might have required, Takeda's issuance of the broad hold in 2002 imposed a duty on itself to preserve any and all Actos information relevant to any potential legal claim at any time in the future regarding the product. B. The Common Law Duty To Preserve Evidence Is Triggered by the Reasonable Anticipation of Litigation Over the Claims Asserted In the Case at Bar. The district court's holding is contrary to this Court's precedent, which makes clear that the duty to preserve extends only to documents relevant to a claim of which the party has notice. In King v. Illinois Central Railroad, 337 F.3d 550 (5th Cir. 2003), the Court addressed precisely this issue. King concerned a lawsuit arising from an automobile-train collision at a railroad crossing, in which the plaintiff (King) alleged that the railroad signal at the crossing malfunctioned. Id. at 552-53. Shortly after the accident, King's attorney had apprised the defendant railroad company that he represented King, but he made no contention that the signal malfunctioned at the time of the accident and no request for access to [the railroad's] records or to the signal. Id. at 556. Both the signal itself and its maintenance records were later destroyed for innocent reasons. Id. (noting that the maintenance records were destroyed under a routine file maintenance regime and the signal was destroyed as part of an overall system upgrade). Nearly three years later, and after the signal and its maintenance records had been destroyed, the plaintiff informed the railroad for the first time that he was seeking recovery based on an alleged signal malfunction. …