If you own a company that provides cell phones and/or tablets to its employees, take note: text messages of your employees are subject to litigation hold notices, too, just like email, files on your computers, and physical files.
As was made abundantly clear by the Southern District of Illinois in its recent, lengthy opinion in the In re Pradaxa products liability litigation, any litigation hold should also include instruction to preserve and protect text messages, as well as a process for ensuring such hold is properly implemented.
The Pradaxa case involved more than 1,500 claims of damages due to the allegedly defective drug, Pradaxa. The defendant company claimed that it didn’t know that text messages of its pharmaceutical sales representatives were relevant; that “text message” was not specifically noticed in the hold; and that “text messages are a less prominent form of communication and that the production of text messages is too burdensome.”
These arguments failed to engender sympathy from the judge. Instead, the judge slapped the company with sanctions of close to $1 million for the failure to preserve text messages, the failure to suspend the auto-delete function of text messages during the hold period, and for what the court deemed were bad faith acts and omissions with regard to other evidence. See In Re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, 3:12-md-02385 (ecf. doc. no. 320) (December 9, 2013). The company has appealed the decision.
The duty to preserve and protect documents and material which may be relevant to litigation generally arises with the filing of the complaint, but such duty can be triggered earlier, if a party knows or should know that litigation is imminent. Ensuring that all of the company’s key personnel are notified of the duty to preserve and protect in a well-drafted litigation hold letter, as well as follow-up confirmation with documentation that such steps are taken, and utilization of effective technology to capture the evidence, is essential to defending against discovery disputes and protecting your company from sanctions.
Should you have questions or concerns about your duty to preserve evidence in potential or actual litigation, please contact any member of the KDDK Litigation and Trial Services Practice Team.