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December 13, 2019 Update

Today the court in the TDF cases pending in the San Francisco County Superior Court entered an order regarding electronic discovery. In cases against large drug companies, virtually all of the companies’ “documents” will be maintained in an electronic format. For example, there are likely millions of e-mails, memorandum, and study results that may only be maintained electronically on the defendant’s servers. This raises several issues that required the court to enter an order. First, the court’s order requires the defendant to take steps to ensure that relevant electronic evidence is not destroyed or altered. Many times companies have in place “automatic deletion” policies that provide for the deletion of e-mails or other electronic files after a certain period of time. The court’s order requires the defendants to ensure that this does not happen. Second, the order address the manner in which electronic document should be produced to the plaintiff. Specifically, the order requires that the documents produced in a “native file” format whenever possible. Native file format means the electronic files are produced in the exact same manner they are maintained on the companies’ servers instead of being produced as a hard copy. For example, instead of printing out an e-mail and sending it to the plaintiffs, the defendant is required to simply copy the e-mail electronically and send it in the same format in which it was created.

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