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.
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