Choosing to “Get By With a Little Help From My [ESI Neutral Expert] Friends”
In this antitrust lawsuit, the court granted the defendant’s motion to depose a neutral, court-appointed forensic expert who analyzed the plaintiff’s electronically stored information (ESI).
The plaintiff, Procaps S.A., filed the lawsuit in December 2012, seeking $350 million in treble damages from the defendant, Patheon Inc. However, Procaps did not implement a legal hold until February 27, 2014 in response to a court order granting a motion by defendant Patheon. Before this time, Procaps admitted it had engaged in “inadequate” efforts to search for documents and ESI. For example, Procaps lawyers never went to the company’s Colombian headquarters to meet with executives or IT staff to discuss the need to locate and preserve ESI. Nor did the company retain a consultant to help it implement a legal hold or look for relevant data. Indeed, some Procaps employees looked for ESI on their own, without any guidance from counsel and without seeing a copy of Patheon’s document requests.
Eventually, Procaps agreed to work with Patheon to select a neutral outside vendor to perform a forensic analysis and determine the status of Procaps’s ESI and determine whether any could be retrieved. The parties chose Setec Investigations. The parties also agreed to the appointment of a special master to address the issues arising from the ESI forensic analysis.
The court ordered Setec to recover files deleted after October 22, 2012 and to prepare a report identifying the deleted files that it could not fully recover. Setec’s “highly technical” report, which spanned thousands of pages, showed that almost 200,000 files, including e-mails, PDFs, and Microsoft Office documents, had been deleted. At least 5,700 of those files contained a search term in their title and were potentially responsive.
Neither party could agree on the report’s meaning, so each filed its own summary. Procaps focused on the possibility that duplicate files existed elsewhere, while Patheon argued that Procaps deleted more than 17,000 documents the day after the court ordered Procaps to implement a legal hold.
Given the dispute, Patheon asked the court for leave to depose the forensic expert, finding Setec “uniquely qualified” to explain its findings. It intended to “get to ‘the bottom of the scope and severity of Procaps’ failure to preserve’” so that it could make its spoliation argument to the court or jury if necessary. Procaps opposed the motion, arguing that Patheon’s request was unjustified. In essence, Procaps did not want Patheon “to make Setec into its own expert in the construction of a spoliation case against Procaps.”
The court decided to allow the deposition under Federal Rule of Evidence 706, which permits parties to depose court-appointed expert witnesses. Furthermore, the court welcomed the assistance of the testimony, presuming it would “be compelled to once again plunge into the thicket of details surrounding Procaps’s ESI,” which it claimed would be “a daunting task.” The court reasoned the deposition would assist the court in ruling on matters involving spoliated ESI, and the Special Master appointed to handle ediscovery issues in the case would take part of the deposition. Furthermore, Setec was in a position to testify as to whether any documents were destroyed in bad faith and whether the files could be recovered from other locations. In this way, the deposition could help Procaps as well as Patheon. In short, quoting Beatles lyrics, the court said, it “hopes to ‘get by with a little help from my [ESI neutral expert] friends’ and is ‘gonna try [to comprehensively and correctly assess the to-be-submitted ESI issues] with a little help from my friends.’”
Accordingly, the court provided that the deposition could last five hours, allotting the Special Master 2.5 hours and each party 1.5 hours for questioning.
Read the Full Case:
Ediscovery is difficult, and Procaps’s failure to engage expert help in preserving ESI from the outset of the case spelled its doom.
Had Procaps elected to retain the services of an ESI expert early in the matter, it likely could have avoided the need to hire a forensic expert as well as the spoliation claims themselves. An expert could have advised on the best way to preserve data, including implementing a timely legal hold and informing executives and employees of their duty to save ESI.