In re Seroquel Products Liability Litigation, Case No. 6:06-md-1769 (M.D. Fla. August 21, 2007)

Magistrate Judge David Baker has sanctioned the defendant AstraZeneca for failure to cooperate in the production of databases and failure timely and systematically to produce e-discovery associated with eighty AZ custodians in a manageable, searchable form. The court will allow further presentation of evidence as to the prejudice or damage resulting from AZ’s failures.

The multidistrict litigation case over the anti-psychotic medication Seroquel proceeded without the usual written discovery requests. Instead, the parties submitted a case management order that set forth deadlines for production of certain types of information, including documents from eighty custodians chosen by AZ as having relevant information and a series of relevant databases. At the time of that submission the court commented that the defendant’s failure to “investigate and understand its own records and documents and to prepare them for production has not met expectations of the Court as discussed in the September 2006 Conference.’ The court comment was prescient.

Despite requests by plaintiffs’ expert to meet with an equivalent IT counterpart to discuss various technical problems with production of over ten million pages and an explicit order to allow plaintiffs to interview AZ’s IT employees, no such IT counterpart was ever provided and no such discussion or interview ever took place. While complaining of the posturing and petulance of both sides, the court was more troubled by AZ’s decision to conduct key word searches on its numerous databases to locate relevant documents without ever discussing with the plaintiffs what words would be used. The court found that the key word search was “plainly inadequate,” attachments to emails were not provided, relevant emails were omitted, AZ’s deduplication method “remains mysterious,” production was tardy, “AZ’s efforts in preventing and solving technical problems were woefully deficient,” and there was no document production quality control. “It is undisputed that the production ‘completed’ on June 30, 2007, had load file, metadata, page break and key word search problems, making the 10 million pages of documents unaccessible, unsearchable, and unusable as contemplated under the Rules.”

Finally, the court concluded that AZ was “purposely sluggish” in making effective production to plaintiffs, for which prejudice is presumed. AZ pointed to its vendor, but the court responded with citations to appellate decisions holding that continued reliance on an ineffective vendor is itself sanctionable.

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