When Boehringer Ingelheim Pharmaceuticals, Inc. (BIPI) faced a considerable class action lawsuit for deaths related to its blood-thinner, Pradaxa, avoiding sanctions for the destruction of electronically stored information (ESI) and a legal setback is just what the doctor ordered.

From May 2009-August 2011, Wa’el Hashad was employed at BIPI as vice president of marketing. Following the end of his employment, and in accordance with the company’s specific document retention policies, his custodial documents were deleted on November 22, 2011 — 24 hours after a previous litigation hold was released.  The Plaintiff Steering Committee (PSC) contended that BIPI was under a pre-litigation duty to preserve these custodial documents in November 2011 and, therefore, wrongly destroyed the ESI. It then asked the Court to sanction the Defendant by imposing a spoliation inference. The Court’s decision arrived this past September.

The Court determined that BIPI was not under a duty to preserve documents relevant to the litigation back in November 2011 because this obligation didn’t arise until February 2012 when BIPI received a demand letter related to the Pradaxa post-launch product liability suit. Thus, because no duty to preserve existed at the time of the documents’ destruction, a spoliation inference was not appropriate. Invoking “safe harbor” Federal Rule of Civil Procedure 37 (e), the Court went on to say that even if the duty to preserve had existed at the time the ESI was destroyed, the Plaintiff had not shown that it was destroyed in bad faith. Again, no evidence of bad faith meant that the PSC was not entitled to a spoliation inference.

Final diagnosis: BIPI fared well against the spoliation allegation due to having a specific document retention policy and a sound legal holds system in place, which appropriately released the legal hold on the ESI in question, presenting a detailed documentation of the ESI’s destruction and acting in good faith.