## Facts

- Products-liability claims concerning the anticoagulant Pradaxa were consolidated in an MDL in the Southern District of Illinois.
- Plaintiffs, acting through a steering committee, moved for sanctions and to compel production, alleging failures to preserve and produce electronically stored information (ESI).
- The court determined the duty to preserve Pradaxa-related evidence arose in February 2012, when the manufacturer received a demand letter and the first post-launch product-liability case was filed.
- A former executive’s custodial files were deleted in November 2011 pursuant to a retention policy; plaintiffs argued litigation was anticipated earlier and sought spoliation sanctions.
- After the duty to preserve arose, the manufacturer’s ESI efforts were found deficient, including delayed preservation for the full sales force, failure to preserve a key scientist’s ESI, and delayed production from a shared Google Drive.
- Plaintiffs sought preservation of employee text messages; the manufacturer declined, arguing the burden outweighed likely relevance.
- Large volumes of ESI (reported as hundreds of thousands of pages) were produced only later in the MDL after discovery disputes and court involvement.

## Issues

1. When did the manufacturer’s duty to preserve Pradaxa-related ESI arise for purposes of spoliation analysis, including as to the former executive’s deleted custodial files?
2. Whether the deletion of the former executive’s files warranted spoliation sanctions such as an adverse-inference instruction.
3. Whether post-duty ESI preservation and production failures (including delayed custodian coverage, shared-drive production delays, and refusal to preserve texts) warranted sanctions and, if so, what form.

## Decision

- The court held the duty to preserve arose in February 2012, not in November 2011.
- The court denied an adverse-inference/spoliation sanction based on the former executive’s files because they were deleted before the duty to preserve attached and there was no sufficient showing of bad faith.
- The court found the manufacturer’s post-duty ESI preservation and production were inadequate and warranted sanctions.
- The court imposed remedial measures and lesser sanctions (including directives to complete production/recovery efforts and cost-related relief), rather than an adverse-inference instruction tied to the pre-duty deletions.

## Legal Principles

- A duty to preserve evidence arises when a party knows or should know litigation is imminent; concrete triggers (e.g., demand letter and filed suit) can establish the start date.
- Spoliation sanctions generally require destruction after the duty to preserve attached, relevance of the destroyed material, and a culpable mental state; severe sanctions like adverse inference typically require bad faith or comparable culpability.
- Routine document-retention deletions occurring before the duty to preserve attaches do not support spoliation sanctions for that destruction.
- Under Rule 37 and inherent authority, discovery sanctions must be proportionate to fault and prejudice and may include remedial production orders and cost-shifting where ESI practices are deficient.
- Preservation decisions for burdensome ESI sources (such as text messages) are assessed under proportionality; in large litigation, courts may require targeted measures to reduce risk of losing unique relevant communications.

## Conclusion

The court set February 2012 as the duty-to-preserve trigger, refused to impose an adverse inference for a former executive’s pre-duty deletions, and instead ordered corrective relief and lesser sanctions aimed at addressing and deterring the manufacturer’s post-duty ESI preservation and production failures in the MDL.


In re Pradaxa Prods. Liab. Litig., No. 3:12-md-02385-DRH-SCW, 2013 WL 6486921 (S.D. Ill. Dec. 9, 2013)