After finding out certain relevant e-mails had been deleted, PSC immediately motioned to compel discovery and impose sanctions on BIPI. The deleted e-mails were particularly relevant because they pertained to the drug-in-suit, Pradaxa, and were in the possession of an employee who supervised Pradaxa’s development. The Court even noted that “[t]here is no question that [the employee’s] custodial file would have included documents relevant to the instant litigation. However, BIPI contended that because they followed their document retention policy, which was deemed reasonable, they should be able to escape fault.
As it turns out, BIPI was correct. In an opinion dated September 25, 2013, the Southern District of Illinois held that because BIPI had a reasonable document retention policy, which they fully complied with, sanctions were not warranted. BIPI’s document retention policy called for leaving “all of the employee’s email, user share and hard drive documents in place until 30 days after the employee’s final day with BIPI. After those 30 days, the documents are deleted…Further, when a litigation hold is released, the document retention policy is to delete all documents maintained exclusively
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under the hold within 24 hours.”
Note that the Court found this to be reasonable, despite the Plaintiff’s contention that “the above document retention policies conflict with the document retention policies disclosed during the discovery process.” In finding that the policies do not necessarily conflict, the court held that BIPI was not exposed to sanctions.
Have a solid document retention policy, and follow it.
Matthew Miller, a Seton Hall University School of Law student (Class of 2014), focuses his studies in the area of Intellectual Property. Matt holds his degree in Chemistry from the University of
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Chicago. Currently, Matt works as a legal intern at Myers Wolin, LLC.
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March 19, 2014 at 10:18 AM
I find it interesting that the court found 30 days to be a reasonable time to delete all of the employee’s emails after the employee’s final day. I can imagine a circumstance where the employee seeks to sue the employer but none of the relevant documents on the employee’s hard drive are available because the documents were deleted after 30 days of termination. Would the court find a 20 day retention policy reasonable? 10 days? 5 days?
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April 2, 2014 at 10:19 AM
I agree with Eric’s comment above. 30 days seems like an interesting choice for the court to determine as a reasonable time. 30 days seems so short, and unreasonable in this day and age, wen these documents are easy to store, and can even be stored by individuals for much longer period of times. I wonder in the future if this 30 standard will ever be upheld or set as an overall standard. I personally do not see that number lasting through appellate court decisions.
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April 23, 2014 at 10:24 PM
I believe the 30 day time frame authorized by the court to be reasonable. Companies need to operate efficiently;not in constant anticipation of litigation. This case recognizes what lawyers sometimes forget - that litigation is secondary to the operation of a business.
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