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The Fen/Phen Case
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.
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
Wyeth's extensive use of internal electronic communications,
discovery of its email records quickly became of paramount
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.
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.
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.
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.
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:
destruction of evidence, by failing to suspend the
recycling of tapes until well into the litigation?
to produce the newly-found backup tapes in a timely
Proceeding With Discovery
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.
reaffirmed the necessity of conducting thorough discovery of
electronic materials, opining:
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)
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.).
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.
response to what they saw as Wyeth's willful refusal to comply
with discovery, the plaintiffs sought four sanctions:
An evidentiary order ruling that all email sent among
Wyeth employees should be admitted under the business records
exception to the hearsay rule;
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;
A ruling revoking the permission of Wyeth's cousel to
practice in the relevant jurisdiction and, hence, to represent
A mandate to Wyeth to pay all fees associated with the
discovery of electronic material.
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.
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
- 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?