The plaintiffs in the potential multidistrict litigation In Re New England Compounding Pharmacy Cases secured a key win early on: the judge ordered preservation orders for tangible and electronic evidence held by defendants. The case stems from an incident last Fall when the defendant, New England Compounding, recalled three lots of methylprednisolone acetate that have been linked to 590 cases of fungal meningitis and other infections, which led to 37 deaths.
The preservation orders issued by Judge F. Dennis Saylor IV of the District of Massachusetts directs defendants to preserve documents, including drafts and handwritten notes, as well as electronically stored information on all types of devices and tangible things that are likely relevant and subject to discovery in the case. Further, the defendants are ordered to stop the “routine destruction, recycling, relocation, or alteration of documents, [electronically stored information] or tangible things” unless it makes plans to preserve evidence that would otherwise be lost.
In addition, the order directs the defendant that it may not change or destroy its “clean rooms, anterooms, preparation rooms, and mechanical spaces” including the doors, equipment, fixtures and HVAC systems. The orders includes items currently in the custody of third parties, which was a win for plaintiffs, as the defendant had argued that identifying third parties who have or hold relevant evidence would be unreasonable.
An MDL panel will decide whether to consolidate the 83 separate cases on January 31, 2013.