In re Pradaxa Products Liability Litigation

Consumers of the prescription drug Pradaxa formed a Plaintiffs’ Steering Committee (committee) (plaintiff) to conduct a federal products-liability suit against Pradaxa’s manufacturers, Boehringer Ingelheim International GMBH and Boehringer Ingelheim Pharmaceuticals, Inc. (collectively, Boehringer) (defendants). Boehringer’s duty to preserve relevant discoverable electronically stored information (ESI) arose in February 2012, and by June 2012, Boehringer should have known it was facing nationwide litigation involving hundreds of plaintiffs. Nevertheless, Boehringer took the following actions: (1) Boehringer initially planned to preserve sales-force ESI for only a few of its salespersons and did not retain ESI for all current or former salespersons until March 2013; (2) Boehringer failed to preserve a high-level scientist’s Pradaxa ESI; (3) Boehringer hired a contractor to lead its discovery effort but gave the contractor insufficient access to Boehringer’s Google Drive (G drive) shared network, with the result that 400,000 pages of discoverable ESI were not produced until the fall of 2013; and (4) Boehringer refused the committee’s request to preserve text messages on Boehringer employees’ personal or company-owned mobile devices, claiming that the cost of preservation was disproportionately burdensome, given that few texts were likely to be Pradaxa related. The committee petitioned the court to sanction Boehringer for inadequate preservation of ESI.