Hester v. Bayer Corp.

206 F.R.D. 683, 2001 U.S. Dist. LEXIS 23836, 2001 WL 1868777
CourtDistrict Court, M.D. Alabama
DecidedDecember 21, 2001
DocketNo. CIV.A. 01-D-1301-N
StatusPublished
Cited by2 cases

This text of 206 F.R.D. 683 (Hester v. Bayer Corp.) is published on Counsel Stack Legal Research, covering District Court, M.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hester v. Bayer Corp., 206 F.R.D. 683, 2001 U.S. Dist. LEXIS 23836, 2001 WL 1868777 (M.D. Ala. 2001).

Opinion

MEMORANDUM OPINION AND ORDER

DE MENT, District Judge.

Before the court is Defendant Bayer Corporation’s (“Bayer”) Emergency Motion To Vacate which was filed on November 14, 2001.1 (Doc. No. 6.) Plaintiffs filed a Response thereto on November 21 (Doc. No. 16), to which Bayer filed a Reply on November 30. (Doc. No. 20.) Plaintiffs in turn filed a Supplemental Response on December 3 (Doc. No. 21), which was met in kind on December 7 by Bayer’s Supplemental Brief. (Doc. No. 22.) Upon careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that Bayer’s Motion To Vacate is due to be granted.

I. JURISDICTION AND VENUE

The court exercises jurisdiction over the subject matter of the present controversy pursuant to 28 U.S.C. § 1332. The Parties do not contest personal jurisdiction or venue.

II. FACTUAL AND PROCEDURAL BACKGROUND

The present cause of action is one of several hundred products liability suits pending nationwide against Defendants Bayer and GSK concerning the alleged health problems associated with the prescription drug Baycol. Though the cause of action was originally brought in the Circuit Court of Montgomery, Alabama, Bayer and GSK removed the matter to the present forum pursuant to 28 U.S.C. § 1446 on the basis of diverse citizenship. Prior to removal, however, Plaintiffs, in an ex parte proceeding, successfully petitioned the state court to enter a document preservation order. According thereto, Defendants are required to “preserve all documents and information, whether [in] paper or electronic format, pertaining to Baycol.” (Mot.Ex. B.) As such, they have been ordered to “suspend all routine destruction of documents, including but not limited to, recycling back-up tapes, automated deletion of email, and reformatting hard drives.” (Id.) Shortly after removing the matter to federal court, Defendants requested that the court vacate the preservation order. Upon first having determined the propriety of its exercise of jurisdiction, the court will now address the providence of the state court’s preservation order.

III. DISCUSSION

It is well established that “a federal district court may dissolve or modify injunctions, orders, and all other proceedings which have taken place in state court prior to removal.” Maseda v. Honda Motor Co., Ltd., 861 F.2d 1248, 1252 (11th Cir.1988); see also 28 U.S.C. § 1450. The Parties disagree as to [685]*685whether the preservation order presently restraining Defendants can be characterized as injunctive in nature, thereby demanding accordance with Rule 65 of the Federal Rule of Civil Procedure, or whether it is no more than a discretionary order inherent in the trial court’s general ease-management authority. Defendants have cited caselaw suggesting that the former is true, see Pepsi-Cola Bottling Co. v. Cargill, Inc., 1995 WL 783610, at *3 (D.Minn. Oct.20, 1995); Humble Oil & Ref. Co. v. Harang, 262 F.Supp. 39, 42-44 (E.D.La.1966), whereas Plaintiffs have been much more agnostic, asserting simply that document preservation orders “are common in complex litigations,” HJB, Inc. v. Am. Home Prods. Corp., 1994 WL 31005, at *1 (N.D.Ill. Feb.1, 1994), and readily fall within the trial court’s “very broad discretion regarding discovery matters.” Ex parte Thomas, 628 So.2d 483, 485 (Ala.1993). The court is not persuaded that such a distinction is of material significance, for considerations of fairness, equity and efficiency enter the calculus either way.

The court believes the more appropriate question to ask is whether such an order is appropriate in the first place, and if so the proper shape it should take. Whenever a lawsuit is filed, the defendant is automatically required to take all appropriate steps to preserve any and all information which might be relevant to that litigation. See Fed.R.Civ.P. 26. To supplement every complaint with an order requiring compliance with the Rules of Civil Procedure would be a superfluous and wasteful task, and would likely create no more incentive upon the parties than already exists. The possibility that a document preservation order might induce a cavalier defendant to elect the moral high road, however, must be the justification for the entry of such orders, and this possibility begs examination.

By its letter, the Federal Rules of Civil Procedure only permit a court to sanction such errant proclivities when an order has already been imposed. See Fed.R.Civ.P. 37(b). However, courts have long exercised this very same discretion in the absence of such orders, basing their authority in the “inherent power to regulate litigation, preserve and protect the proceedings before [them], and sanction parties for abusive practices.” Capellupo v. FMC Corp., 126 F.R.D. 545, 551 (D.Minn.1989) (citing cases); see also Roadway Express, Inc., v. Piper, 447 U.S. 752, 764-67, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980) (discussing contours of federal court’s inherent sanctioning authority). Additionally, the common law of a number of states recognize a cause of action sounding in tort for the spoliation of evidence, thereby creating an additional incentive for defendants and further calling into question the need for preservation orders.2 As such, the extent to which a preservation order might provide additional incentive for defendants is unclear.

Of course, there is one clear advantage of a preservation order, and that is the efficiency it offers the parties and the court vis á vis the other mechanisms discussed above. There is no need to engage in satellite litigation regarding a defendant’s actions when the court most familiar with such actions can impose immediate sanctions. Moreover, the court’s “inherent power” itself has limitations, see id., so plaintiffs may take comfort in the unquestionable authority offered by Rule 37(b), and defendants likewise can be provided guidance as to which steps might be appropriate given the clear delineation provided by a preservation order. Indeed, like snowflakes, no two litigations are alike, so a [686]*686preservation order tailored to the particular issues of the lawsuit in question may best ensure a forthright and expeditious discovery process. Herein lies the shortcomings of the present order.

Plaintiffs sought the entry of an open-ended order on an ex parte basis. Defendants were not given the opportunity to inform the court that they were already taking the appropriate steps as required by the law (Mot.Ex.

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Bluebook (online)
206 F.R.D. 683, 2001 U.S. Dist. LEXIS 23836, 2001 WL 1868777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hester-v-bayer-corp-almd-2001.