Missing files seem to be all the rage at the moment. Following Johnson & Johnson’s revelation that thousands of documents related to its vaginal mesh products have been lost or destroyed (despite a litigation hold requiring the documents be kept), Boehringer Ingelheim is facing a costly fine for losing “countless” files of its own.
The company said, overly burdensome requests have made the process far more complicated than expected.
The ruling comes from U.S. District Judge David Herndon in Illinois, the judge overseeing almost two thousand Pradaxa lawsuits. Plaintiffs allege that Pradaxa can cause fatal bleeding and is responsible for hundreds of deaths in those who have taken it. As part of the proceedings, documents related to the development and marketing of the drug were put under a litigation hold, which required they be preserved and made available to lawyers and plaintiffs involved in the lawsuits.
It has now become apparent this did not happen. Judge Herndon, in fact, called the company’s attempts to safeguard crucial documents “gross[ly] inadequate” and ordered Boehringer pay a $931,000 fine.
In a statement to Business Week, Boehringer acknowledged that “unintentional” and “unexpected” problems with the discovery process had affected plaintiffs – but was quick to shift the blame to their attorneys. While 32 million pages of documents have been made available, the company said, “overly burdensome” requests have made the process of responding to plaintiffs’ lawyers far more complicated than expected.
A bit farfetched? Blaming your failure to produce documents on the fact you’re being asked to produce documents is somewhat of a shaky argument
Judge Herdon, in a 51-page ruling, reported that he first received complaints about Boehringer’s obfuscation at the very beginning of the multidistrict litigation. While the company also argued that many of the requests were for documents unrelated to the lawsuits, Herndon noted that high-level files from Pradaxa’s development and documents from marketing consultants are also missing.
Boehringer also allowed employees to delete phone messages related to Pradaxa, failing to take “obvious steps” to preserve company documents, Herdon said.
The fine of almost $1 million is accompanied by an order that company executives hand over any requested files in their possession. If they’re unable to do so, the court must be informed, with the possibility of new sanctions now officially on the table, the judge said.
Are companies learning their lesson? Too soon to tell, but it seems that the courts’ patience with companies’ lack of cooperation is well and truly running thin.