The Ghosts Of Litigation Holds Past

Earlier this year, in the widely followed In re: Actos (Pioglitazone) Products Liability Litigation matter, a Louisiana federal jury ordered a drug manufacturer to pay $6 billion in punitive damages and $1.5 million in actual damages.¹ An adverse ruling and instruction from the judge regarding spoliation of evidence likely played an important role in the verdict. The spoliation ruling stemmed from a litigation hold imposed in a separate lawsuit almost ten years earlier. Below we suggest a number of steps that can help prevent a similar outcome for manufacturers in future cases.

THE SPOLIATION RULING

Even though the Actos MDL did not begin until 2011, the spoliation ruling focused on a litigation hold issued by the manufacturer in 2002 that involved the same drug. The broadly worded hold required the manufacturer to retain "any and all documents and electronic data which discuss, mention or relate to Actos." The hold had never been lifted and had been