…data, or “nearly 27 million pages of documents.” Defendant estimated the time for search to be 17 weeks at a cost of $1.15 million. (Query: how much longer will courts and lawyers assess the volume and burden of ESI by converting it to paper pages? Isn’t the whole point of ESI that it is not paper, that electronic files other than word processing files and PDFs (for example, Excel files) are unlike paper documents, that ESI is… Continue reading
…t format) files. Trial lawyers know or should now what a “native file” is and it is extremely rare that a native file would be a “native PDF file.” Boylan Ruling on Motion to Compel Production of ESI … Continue reading
…iffs may raise that issue again first with Accretive, and then with this Court, if Accretive will not agree to their request for a manual search for responsive documents.” (Query: what is “manual” search of ESI? Is this not a recipe for a game of blind man’s bluff where plaintiffs will be told, “we have # files from Custodian A, and # files from Custodian B” and, based on that, they are supposed to decide whos… Continue reading
… (For Idiots): When you are a civil litigant in U.S. federal court, and you have been ordered to preserve electronic evidence, and a forensic examiner has been appointed by the U.S. District Court Magistrate Judge to collect ESI (electronically stored information), you probably don’t want to be destroying ESI literally at the same time that the examiner is on site collecting the ESI. Just saying. Update #1 (September 8, 2011): Either the… Continue reading
…s of the drug, an antibiotic. Levaquin included a warning but sometime after Schedin’s incident, the warning was changed and made more prominent (made into a “black box” warning in 2008). Subsequent warning label changes would be a classic “subsequent remedial measure” inadmissible at trial if it were not for the fact that the label change was mandated by the FDA, U.S. District Court Judge John R. Tunheim has held. … Continue reading
The interesting fact pattern that gives rise to the problem in this case is what are the duties of a generic drug manufacturer if, after a drug’s initial federal approval (and approval (and then mandated use) of a specific warning label), new information comes to light about potentially harmful side effects? Can a claim be brought against the manufacturer under state law for failure to warn? Gloria Mensing took a medicine, MCP, a gene… Continue reading
… was recently issued. It has seen the retirement of one federal judge (the aforementioned Judge Rosenbaum) and the appearances and disappearances of about 20 different lawyers for the parties. There have been disputes over ESI, IMEs, spoliation, protective orders and privileged documents. The filing last week of the Second Amended Complaint is the direct result of Judge Montgomery’s affirmance of Judge Mayeron’s July 29, 2011 Order regarding p… Continue reading
It is a story of missing ESI (electronically stored information) apparently sold untraceably in Mexico, an inconveniently timed operating system replacement, and other potential misconduct — too many details that, independently, might not raise suspicion but collectively suggest intentional destruction of evidence. (The case was previously covered by Minnesota Litigator here.) Now defendant SMS is ordered to pay for restoration of back-up… Continue reading
…rm or illness? As a first line of defense, pharmaceuticals and device manufacturers seek protection under federal regulation but there are ways for such manufacturers to game that system (by promoting, for example, “off label” uses or, theoretically, by duping federal regulators by other means (i.e., concealing or distorting data as to efficacy or side effects)). So the FDA may afford medical companies some protection, but that protec… Continue reading
…n that would have negatively affected levofloxacin sales in both Europe and the United States. Over the past decade, there appears to have been increased concern about these medications and the communication of risk on their labels. The label warnings have been increasingly emphatic. Plaintiffs’ theories seem to be, in a nutshell, that the drug companies knew of the medicine’s risks and have steadfastly tried to understate or de-em… Continue reading
Were you sold a flare root injection regimen for a treasured oak or multiple oaks on your property to prevent oak wilt disease, only to have your tree die from oak wilt notwithstanding the hundreds of dollars (or more) spent on flare root injection? One label on branded propiconazole says, “Preventive application is more effective than therapeutic treatment.” Some companies that “administer” the flare root injections d… Continue reading
…njection regimen for a treasured oak or multiple oaks on your property to prevent oak wilt disease, only to have your tree die from oak wilt notwithstanding the hundreds of dollars (or more) spent on flare root injection? One label on branded propiconazole says, “Preventive application is more effective than therapeutic treatment.” Some companies that “administer” the flare root injections do so with a guaranty or warran… Continue reading