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Plaintiff ESI in Dispute in Anti-Trust Case Alleging $350 Million in Damages

Posted on March 17th, 2014

Usually it is the defense production that is in dispute regarding ESI, but not in every case. Procaps S.A. v. Patheon, Inc., Case No. 12-24356-CIV-GOODMAN (S.D.Fla. February 28, 2014) is an anti-trust lawsuit involving international corporations and alleges $350 million in damages, and plaintiff ESI production is in dispute.

The issues with the plaintiff ESI cited by the court were as follows:

  • Plaintiff’s counsel allowed Procaps’ executives and employees to self-collect ESI and documents with little to no oversight
  • Some executives used single search terms to collect emails, or only emails to or from the defendant corporation
  • Certain critical employees never received the informal notice to preserve and collect relevant ESI
  • A formal litigation hold was only implemented on February 27, 2014 by court order (the case was filed in December 2012)

In using the above and more as examples of inadequate ESI and document searches, the court agreed that a comprehensive forensic search for ESI was warranted. In addition to the issuance of the formal litigation hold, the court offered specific directions for its ruling, including but not limited to:

  • Engage an independent and objective third party to conduct a detailed forensic analysis of the ESI in this case;
  • Produce certain additional custodians to have their ESI and documents searched;
  • Agree on search terms for the ESI searches, procedures to define the terms, and to agree on what formatting the production will be tendered, including specific metadata fields.

ILS – Plaintiff Electronic Discovery Experts

Did you know? Significant numbers of recycled computers contain confidential personal info, from the National Assoc. for Info. Destruction.

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