A discovery dispute appears to be escalating between
Chris Purcell and Kimberly Groome seek spoliation sanctions for Gilead’s alleged failure to preserve text messages from the phones of two employees, conduct which shows “clear bad faith,” according to their Wednesday motion filed with the U.S. District Court for the Eastern District of Pennsylvania.
This motion follows an April 22 court order that said Purcell, whose own iPhone lost text messages, must pay attorneys’ fees and costs for an expert hired to to examine the phone. The court said it couldn’t conclude Purcell acted in bad faith, and therefore a sanction wasn’t appropriate.
Gilead filed a renewed motion for sanctions on May 17, arguing that Purcell’s explanations for his missing text messages aren’t credible.
The whistleblowers now say “Gilead has attempted to ‘live by the sword’” by seeking sanctions, and should now “suffer the consequences for its failure to preserve electronic evidence in violation of this court’s order.”
They said a current Gilead employee, who was a former sales representative, “inexplicably lost virtually all of her text messages” in her phone on the eve of her deposition. Gilead’s counsel knew about this for at least several weeks but hid this from the whistleblowers, they said.
The employee testified that neither she or nor Gilead did anything to back up or save the texts during the nearly five months they were under subpoena and for the more than 13 months after the whistleblowers served document requests seeking them, the whistleblowers said.
The few text messages produced also show that the employee engaged in fraudulent conduct by recruiting and paying a doctor to participate in an advisory board as a way to induce prescriptions, they said.
The whistleblowers additionally said a regional sales director at Gilead lost all his texts when his phone was damaged by water, but had done nothing to preserve the messages and didn’t even keep his damaged phone.
The court should issue “modest” sanctions in the form of attorneys’ fees and expenses, costs incurred attempting to recover messages, and a jury instruction that parties may argue that the loss of information was likely relevant, the whistleblowers said.
Miller Shah LLP represented the whistleblowers.
The case is Purcell v. Gilead Sci. Inc., E.D. Pa., No. 17-3523, motion for spoliation sanctions 5/26/21.