In Procaps S.A. v. Patheon, No. 12-24356-Civ-Goodman (S.D. Fl. April 24, 2015), the court granted defendant Patheon Inc.'s motion to depose a court-appointed digital forensics expert who had conducted analysis regarding possible spoliation by plaintiff Procaps S.A. In terms of legal analysis, the court's decision was hardly novel (and nothing in the opinion would suggest that the court would be insulted by that observation). The opinion is well worth review, however, because it illustrates—painfully so, for Procaps—a dictum that e-discovery observers, myself included, have been saying for years: Do e-discovery right from the start, or you run the great risk that e-discovery will become the issue, and, if it does, you have lost.

Background

Procaps obviously saw this antitrust matter as a big case. It sought more than $350 million in treble damages from Patheon. Procaps filed in December 2012, but it did not implement a formal litigation hold until after Feb. 27, 2014, and then only after the court ordered it to do so in response to a motion by Patheon. As well, Procaps' counsel acknowledged that its document and electronically stored information search efforts were inadequate.

Although Procaps is based in Colombia, its United States lawyers never went there to discuss with its information technology team and others how relevant responsive ESI would be located, nor did it retain an expert to help implement a litigation hold or search for relevant ESI and documents. Some Procaps personnel, known by Procaps to be custodians of interest, conducted their own searches for ESI and documents without ever seeing Patheon's document request or receiving a list of search terms from its counsel.

After considerable back and forth between the parties, Procaps agreed to allow, and the court ordered, a third-party forensic analyst, Setec Investigations, to investigate ESI retrieval from its digital repositories. It also agreed to the appointment of a special master “to address numerous disputes concerning the ESI forensic analysis, with many of these disputes turning on specialized technical ESI issues which would have required the expenditure of significant time by the court and its staff to address,” according to the opinion.