Damage Control Method

Bloomberg Law reports that a company has allegedly mishandled potentially important emails in a 70,000 person class action.  J. Feeley and D. Glovin, “Sanofi Accused of Destroying Emails Tied to Zantac Recall” (Bloomberg May 11, 2021).  The potential spoliator’s response is instructive.

In the products liability action, plaintiffs allege that the defendant’s product contained a suspected carcinogen.  It is alleged that the loss of the emails will cause delay and make it more difficult to prove the case, i.e., prejudice.

As reported in the article, Sanofi responded:

“Although Sanofi has already provided hundreds of thousands of pages of relevant discovery to the plaintiffs, Sanofi has voluntarily disclosed that certain emails requested by plaintiffs were not preserved as intended,” Ashleigh Koss, a U.S.-based spokeswoman, said in an email Tuesday.

“There was no intentional destruction of data,” Koss said. “Sanofi is working to obtain as much of the data as possible from alternative sources. This issue has no impact on the strong defenses Sanofi has in this litigation, and the company remains fully confident in the safety of Zantac.”

At this juncture, it is not possible to predict the outcome; however, it is interesting to note Sanofi’s tactical approach to the preservation failure.

First, it was apparently transparent.  It voluntarily disclosed the error.  Presumably, it did so promptly after learning of the problem.  That is good practice and, likely, required.  Philip Favro, Esq., of Driven, Inc., has written:

Even though Charlestown Capital and DR Distributors make clear that counsel have a duty to disclose information relating to ESI spoliation, they do not delineate precisely when counsel must do so. While there are benefits to promptly raising and addressing spoliation issues, counsel for a preserving party should have the option to investigate and remediate those issues before being forced to divulge this information. Indeed, neither Charlestown Capital nor DR Distributors require the immediate disclosure of spoliation events. Those courts were exasperated that counsel respectively waited “months” or “over a year” to disclose spoliation problems. Instead, these cases should be read as spotlighting counsel’s obligation to disclose client spoliation, but only after a reasonable time during which counsel may explore the issues and work with the client to ameliorate any resulting harm.

P. Favro, “New Federal Cases Spotlight 2021’s Key Trends in E-Discovery” (Law.com May 13, 2021).

Second, it is looking for secondary evidence to replace what went missing.  If sufficient, that could provide a viable defense to any sanctions motion.  See Fed.R.Civ.P. 37(e); M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Maryland State Bar Ass’n., 2020), Appendix F (title “The Secondary Evidence Rule in Avoidance of Spoliation Sanctions”).

Third, Sanofi investigated and offered to provide a report to the court.  Bloomberg reports that: “Sanofi officials began an internal probe about the email destruction and are scheduled to deliver a report to a judge overseeing Zantac cases in August, the filings show.”  While an opponent may reasonably be suspicious of a spoliating litigant investigating itself, the decision to do so appears prudent and may also be defensible.

Clearly, the best solution is to avoid a failure to preserve; however, perfection has never been the applicable standard.  See, e.g., “No Sanctions Despite Truncated Search” and “What Does ‘The Making of a Surgeon’ Have to Do With ESI and ‘Software Glitches?’”

Faced with a potentially sanctionable situation, this litigant appears to have followed a reasonable and prudent course of action.