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F.T.C. v. Boehringer Ingelheim Pharmaceuticals, Inc.

United States District Court, District of Columbia

October 16, 2012


Page 172

Imad Dean Abyad, Robert Babak Mahini, Federal Trade Commission, Washington, DC, for Petitioner.

Lawrence D. Rosenberg, Peter Biersteker, Washington, DC, Michael Sennett, Pamela L. Taylor, William F. Dolan, Jones Day, Chicago, IL, for Defendant.


JOHN M. FACCIOLA, United States Magistrate Judge.

This matter was assigned to me for all purposes. Before me is the remaining issue in the Petition of the Federal Trade Commission for an Order Enforcing a Subpoena Duces Tecum [# 1]. I resolved the privilege issues presented in that petition and subsequent status reports in my recent Memorandum Opinion [# 69]. Federal Trade Commission v. Boehringer Ingelheim Pharmaceuticals, Inc., 286 F.R.D. 101 (D.D.C.2012). I will now turn to the FTC's argument that Boehringer Ingelheim Pharmaceuticals, Inc. (" BIPI" ) did not conduct an adequate search of its electronically stored information because it refused to search back-up tapes in accordance with the subpoena's demands.

I. Background

BIPI first filed the executed settlement agreements from the Barr-BIPI litigation [1] with the Department of Justice and

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the Federal Trade Commission in August of 2008. Response of Boehringer Ingelheim Pharmaceuticals, Inc. to the Order to Show Cause [# 34] at 5. Five months later, on February 9, 2009, the FTC served BIPI with the subpoena at issue in this case. Id. BIPI responded to the subpoena by initiating a custodian-directed search, " whereby the inside legal department and outside counsel [were directed to] review the subpoena, identify potentially relevant custodians, ask them about their files, gather potentially responsive files both in electronic and hard copy as appropriate, and review the fruits of the search." Id. BIPI also " instituted a document preservation notice for persons who were deemed likely to have any responsive documents," which included placing responsive e-mails in a " hold file" to be " retained indefinitely until the legal hold is lifted." Id. at 5-6. BIPI identified " over 66 employees" who received the document preservation notice. Id. at 7.

The e-mail system used by BIPI " automatically deleted emails from its employees' inboxes 90 days after the email was sent or received," and the FTC argues that this automatic deletion feature was not turned off once the subpoena was served. Reply of the Federal Trade Commission In Further Support of Status Memorandum Advising the Court of New Developments [# 33] at 19. The FTC also complains that some relevant e-mails were inappropriately deleted manually or otherwise lost. Id. at 20. As a whole, argues the FTC, BIPI's efforts to retain documents through manual archiving of relevant e-mails was not sufficient to prevent all relevant e-mails from being deleted under the 90-day automatic deletion program. Id. Consequently, the FTC requests a search of the back-up tapes " due to the document preservation obligations in this investigation and other litigations." Id.

Originally, the FTC requested that BIPI search " all of Boehringer's Electronically Stored Information," including backup tapes and servers dating back to 2003. See [# 1] at 8-12. BIPI, however, maintains that the " disaster recovery backup tapes ... do not separate [ ] working documents such as spreadsheets, documents, PowerPoints, and other types of materials ... [n]or are they easily segregable by author or custodian." [# 34] at 20-21. As such, BIPI estimated that a search of all the backup tapes from January 2003 to October 2010 would cost over $25 million dollars. Id. at 21. This estimate did not include the cost of searching hard drives, which also fell under the FTC's request that BIPI search " all" databases and archives. Id. at 19-20. During oral argument, however, the FTC conceded that it is " willing to forgo the F & G drive at this point, in favor of the backup tapes." See Transcript of Status Hearing [# 59] at 70. The FTC also noted that the relevant period for which backup tapes must be searched is February through August, 2008, [# 59] at 70, and that a search of four tapes would be sufficient, rather than the 24 originally subpoenaed, id. at 52.

Despite the concessions at oral argument, the FTC retains its position that BIPI did not conduct an adequate search of its records, in that it declined to search any server back-up tapes for responsive documents. See Status Report of the Federal Trade Commission [# 41] at 12-13. BIPI, on the other hand, contends that it has done a full and thorough search and that the FTC's request for additional electronic searches remains " unnecessary and unduly burdensome." Response of Boehringer Ingelheim Pharmaceuticals, Inc. to

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the Federal Trade Commission's Status Report ...

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