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Linnen v. Robins:
The Fen/Phen Case


In February of 1997, Mary Linnen died of a heart and lung disorder. Linnen was 30 years old, and she died only days before her scheduled wedding.

Linnen had been taking a combination of the diet drugs fenfluramine and phentermine, or fen/phen, in order to get in shape for her wedding. Her parents, alleging that it was these diet drugs that caused her death, sued, among others, drug maker Wyeth-Ayerst Laboratories Inc. They claimed that the manufacturers sold the drugs knowing that the combination was potentially fatal.

Because of Wyeth's extensive use of internal electronic communications, discovery of its email records quickly became of paramount importance.

The claim is heard in the Massachusetts Superior Court, and is captioned Thomas F. LINNEN, et als v. A.H. ROBINS COMPANY, INC., et als, (Mass. Super. Court, No. 97-2307). The discovery-related decision referred to herein is Linnen v. Robins, 1999 WL 462015, 10 Mass.L.Rptr. 189 (Mass Super. Court, 1999).

Discovery Issues


When litigation in this case commenced, the plaintiffs requested their first set of documents. Their request included the production of electronic messages. Wyeth responded to this request by producing a small number of emails. The plaintiffs then specifically requested all relevant emails, including those saved on the personal computers of individual employees and those relegated to backup tapes. Wyeth returned with more emails found on the hard drives of the individual employees, but claimed that there were no backup tapes from the time period requested by the plaintiffs.

Internally, Wyeth employed a typical backup strategy: It backed up all contents of all servers and personal computers on a regular basis. Backup tapes were normally kept for a period of time and then recycled to be used for newer backups. This process continued during the course of this litigation for three months. In September of 1997, the process of recycling the backup tapes was suspended. This turned out to be a key issue in this case: the plaintiffs were furious that Wyeth destroyed evidence by continuing to recycle backup tapes after being notified that the tapes were required in the litigation.

In December of 1998, over a year after discovery had commenced, Wyeth notified plaintiffs that it might have some backup tapes from an older time period. Apparently, these particular tapes had been saved due to prior, unrelated litigation. Although these tapes had been saved, the tapes that were recycled between June and September of 1997 were permanently lost.

The controversy in this decision centers around two issues:

  • Who should pay the exceedingly high costs of restoring documents from backup tapes?
  • Should Wyeth's attorneys be sanctioned for:
    • Wyeth's destruction of evidence, by failing to suspend the recycling of tapes until well into the litigation?
    • failing to produce the newly-found backup tapes in a timely fashion?

Proceeding With Discovery

The cost to restore all the backup tapes and to recover the email from them was estimated at around $1.5 million. Wyeth was reluctant to shoulder this whole cost on its own. At this time, a similar action is pending in federal court in Pennsylvania, where similar discovery orders are outstanding.

The Court reaffirmed the necessity of conducting thorough discovery of electronic materials, opining:

A discovery request aimed at the production of records retained in some electronic form is no different, in principle, from a request for documents contained in an office file cabinet. While the reality of the situation may require a different approach and more sophisticated equipment than a photocopier, there is nothing about the technological aspects involved which renders documents stored in an electronic media "undiscoverable." (1999 WL 462015, *6)

Furthermore, while the court acknowledged the high cost of producing the evidence requested, it stated that "this is one of the risks taken on by companies which have made the decision to avail themselves of the computer technology now available to the business world." (Ibid.).

The court concluded that it would be most advisable to wait until the defendant in the related federal litigation had complied with the discovery order. In the federal case, the parties had worked out an agreement whereby only a sample of the tapes' contents would be produced, and the cost would be split among the parties. If the discovery order in that case did not produce what the parties in the present case needed, the court would revisit the issue.


In response to what they saw as Wyeth's willful refusal to comply with discovery, the plaintiffs sought four sanctions:

1.       An evidentiary order ruling that all email sent among Wyeth employees should be admitted under the business records exception to the hearsay rule;

2.       An order stating that further depositions that are necessitated by information arising out of the production of the backup tapes are to be paid for by defendants and are to take place in a location convenient to the plaintiffs;

3.       A ruling revoking the permission of Wyeth's cousel to practice in the relevant jurisdiction and, hence, to represent Wyeth; and

4.       A mandate to Wyeth to pay all fees associated with the discovery of electronic material.

The court was sympathetic to the plaintiffs. It granted the second and fourth sanctions. It denied the first on the grounds that it would allow evidence that was too far-reaching, and it denied the fourth based on the fact that it was too hard to tell if it was Wyeth or its counsel that was being uncooperative. Nonetheless, the strictly-worded language clearly indicated that the judge shared the plaintiffs' concerns about Wyeth’s lack of cooperation.


  • The court in this case says that the defendants should not be able to reap the benefits of technology and then use them as a shield. Is this a fair characterization of what Wyeth is doing here?
  • Is it really that hard to restore the backups or is Wyeth taking advantage of the court's unfamiliarity with the technology involved?
If it really is as expensive as Wyeth claims, should the judicial system attempt to provide incentives to companies to keep records that are less expensive to access? What kinds of incentives could be provided?