An Ounce of Prevention: Electronic Discovery Preparedness for Pharmaceutical and Biotechnology Companies

After a year under the electronic discovery amendments to the Federal Rules of Civil Procedure, issues associated with electronic discovery continue to challenge corporate litigants. The evolving case law under the Federal Rules amendments, the addition of new state and local federal rules regarding electronic discovery, and technological changes merge to form a dynamic environment for corporate litigants and their counsel. Being no stranger to litigation, pharmaceutical firms are in many ways more prepared for today's e-discovery environment than their counterparts in other industries. However, e-discovery preparedness is a continual process, driven not only by rule changes and court opinions, but by other forces, both internal and external. E-discovery preparedness must adapt to internal factors like the changing ways in which employees communicate, collaborate, and manage data. E-discovery preparedness must also account for external drivers, including increasingly aggressive opposing counsel seeking to shift the litigation focus from substance to the discovery process itself. Corporate America can also thank the myriad of e-discovery vendors who, playing both sides of the fence, spur on increasingly aggressive and often unreasonable discovery tactics. So what does e-discovery preparedness mean to the pharmaceutical industry and its counsel? Is it possible to anticipate and prevent all disputes over the scope of preservation, collection, and production of electronically stored information (ESI)? Probably not. However, there are steps that pharmaceutical firms and their counsel can take to prepare for electronic discovery at the outset of litigation, or better yet, before the onset of litigation. One of the more challenging areas of IADC member David J. Rosenberg is a partner in the Pittsburgh office of Weber Gallagher and a 1982 Graduate of the University of Pittsburgh School Law. Mr. Rosenberg serves as Vice Chair of both the Casualty and Property Committees of the IADC. Deborah A. Kane is also a partner at Weber Gallagher in Pittsburgh, specializing in employment law and general civil litigation. In addition to her employment practice, Ms. Kane has extensive experience in litigating general civil matters, including fraud, defamation, products liability, medical malpractice and contract actions. This article, which originally appeared in the January, 2008 IADC Employment Law Committee newsletter, explores potential employer liability for blogging and other forms of internet communications e-discovery preparedness emanates from the amended meet-and-confer requirements of Rule 26(f) that require the parties to prepare a discovery plan that, among other things, addresses "any issues relating to disclosure or discovery of electronically stored information, including the form[s] in which it should be produced." (1) Furthermore, the Committee Note to Rule 26(b)(2) speaks of a producing party providing notice of the "category or type" of "sources containing potentially responsive information that it is neither searching nor producing." For a multi-national pharmaceutical firm with thousands of electronic data sources, preparing to meet these requirements is no small task. For many companies, preparing for this aspect of e-discovery will at least require (1) creating an up-to-date inventory of the company's key data sources; and (2) planning for the preservation, collection, and production of those data sources when needed. Taking Stock of ESI Creating an inventory of key electronic data sources in many cases will be the first step to responding efficiently and accurately to discovery requests and meet-and-confer requirements. Specifically, such an inventory can assist outside counsel in (1) explaining why certain data sources do not hold responsive ESI; (2) explaining why certain data sources are not reasonably accessible; (3) determining whether certain applications contain proprietary or trade secret information that should be protected; (4) identifying patient, customer, or employee information that would need to be redacted in the event of production; (5) suggesting restrictions on the data requested by opposing counsel, including restrictions as to time, injury, or product; and (6) identifying key custodians that may further limit the scope of preservation and production, especially in cases that may involve only a few "key players. …