Actos News

Takeda Pharmaceuticals Continues Court Ordered Search for Missing Files in Actos Bladder Cancer Litigation
October 17, 2014

Takeda Pharmaceuticals has filed its second required report to U.S. District Court Judge Rebecca Doherty in compliance with Judge Doherty’s order that the Japanese drug maker and its related corporations in Europe and the United States recover missing emails and documents belonging to 46 key Takeda employees. In the report Takeda states that it has recovered 61,000 emails and attachments that were either sent or received by one or more of the 46 employees, referred to as the “document custodians.” The emails were recovered from a Postini (a cloud computing email and Web security service) email archive.

Takeda has also been searching “retention tapes” (magnetic tapes used to store data) containing email server and personal file share data. The company reports that it has so far catalogued 2,619 of the 26,000 retention tapes available in the U.S., and 52 of the 2,100 retention tapes available in Europe. Over 41,000 documents have been produced from restored U.S. and European retention tapes.

The missing evidence was a central issue in the first federal bellwether Actos bladder cancer trial, which ended in April with the jury ordering Takeda to pay $1.5 million to the plaintiff and $9 billion in punitive damages. In that trial, jurors were instructed that files and documents that Takeda had a legal duty to preserve had been destroyed and that they were “free to infer those documents and files would have been helpful to the plaintiffs or detrimental to Takeda,” if they felt the evidence supported that inference.

Following the trial (June 20), Judge Doherty issued a final ruling in which she affirmed that Takeda had acted in “bad faith” and that the company’s “corporate conduct was not innocent, inadvertent, or merely negligent in its destruction, deletion, and attempt to conceal relevant information and evidence.” However, she deferred, until the completion of the document reconstruction currently underway, a determination of attorney’s fees for which Takeda could be held liable due to its destruction of documents and failure to respond to discovery requests. Thus, Judge Doherty’s judicial blade still hangs above Takeda’s corporate head. How it falls may well depend upon the diligence with which Takeda goes about its task of finding the missing evidence and exactly what they find.