On Feb 5, 2014, at 12:01 AM, RECMGMT-L automatic digest system <[log in to unmask]> wrote:

> From: David Gaynon <[log in to unmask]>
> Subject: Spoliation/Takeda Pharmaceuticals
> Date: February 4, 2014 at 11:26:23 AM EST
> 
> 
> In reading about this case it appears that sanctions may be justified since documents were destroyed after executives were aware of the firm's preservation obligations and directed employees to preserve relevant documents. A number of key employees did not follow these directions but instead purged files.  This sounds like spoliation to me and I think that is what the judge was saying.  I have looked for Judge Doherty's 75 page ruling on this but have been unable to locate it.  If anyone could provide a reference I would most appreciate it.
> 
> You can read a report from Bloomberg at http://www.bloomberg.com/news/2014-01-30/takeda-jury-can-hear-claims-over-destroyed-actos-files.html  which I consider a relatively unbiased source.
> 
> David Gaynon, CRM
> Huntington Beach CA
> [log in to unmask]

Shouldn’t the actual documents be the relevant issue. What if employees were destroying documents on their computer that showed they were sexually harassing another employee. Or maybe it was pornography on their computer they did not want viewed. Most hold directions reference certain classes of information. Not an across the board hold.

My point is that a records management review could show that what appears to be spoliation may not be.  That an over-broad inference that every destroyed document must be considered spoliation is to harsh and automatically paints a defendant at guilty.  Cases need to be weighed on the evidence.

This is one of the largest pharmaceuticals in Asia. A researcher could throw their entire laptop in the trash and it might not be spoliation because these computers are backed up on servers, the servers are backed up on tape.  A sharp records manager on the witness stand could point out that the Judge simply does not understand how pharmaceutical companies work. First, there are hard copy researchers note books that record every process with the drug. Every laboratory experiment.  Then the clinical trials.  From petri dish to mouse to human trials. Nothing in someone’s office is unique unless it is handwritten post it notes.

The judges direction will be a cause for an appeal as it is over-broad if it says “the jury should infer an adverse opinion if any document is destroyed.”  The merit of the document should have to be provided.  Or the plaintiff should have to prove their records management program was deficient in that protocols were not in place to protect the documents. If this is a huge company with all computers on a network and the network is backed up, then it could be impossible to really remove key evidence.

If someone sitting at their lap top can completely remove key documents in a well run pharmaceutical, then the wish of Glen that some records manager could be sent to jail for criminal recordkeeping could be fulfilled. Just once I would love to see the testimony of a great Records Manager. Whip out a laptop hooked to a LCD projector and show the judge.  “Your Honor watch me delete this document! You say I am in contempt!  I don’t think so.  Look here it is in the trash! Oh wait, I hit secure delete.  Oh wait here it is on a back up disk.  Oh wait here it is in the Cloud. Oh no! The Cloud doesn’t work! In contempt again? Well here is the back up tape and the archive of the back up tape and on and on.”

I remember the great Joan Gallagher of Schering Plough coming to the rescue with her records and a large case was won.  Is the day of the heroic records manager gone?

I remember Larry Medina with a well organized binder with documentation back to Moses and Mrs O’Leary’s cow pointing out to the NFPA, a certain ill mannered engineer and an unprepared attorney and a large records storage company why certain elements in records storage warehouse.

A well organized records manager can resemble Roy Rogers shooting the gun out of the bad guy’s hand and saving the day.  Where are these RAIN stories?

I bet John Montana knows stories like this from his career.

Hugh Smith
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