Federal Trade Commission v. Boehringer Ingelheim, Pharmaceuticals, Inc.
898 F. Supp. 2d 171
D.D.C.2012Background
- FTC seeks enforcement of subpoena duces tecum against Boehringer Ingelheim Pharmaceuticals (BIPI).
- Remaining issue is whether BIPI must search backup tapes for electronically stored information.
- Prior memoranda resolved privilege issues; focus now on search scope and methods.
- BIPI conducted a custodian-directed search and instituted a broad preservation notice; 66 employees notified.
- BIPI’s email system automatically deletes emails after 90 days; FTC argues backup-search is needed to recover missing docs.
- Original request sought all ESI, including backups to 2003; costs estimated over $25 million; later narrowed to four backup tapes for Feb–Aug 2008.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What law governs backup-tape searches under an administrative subpoena? | FTC invokes Texaco standard for undue burden. | BIPI emphasizes good-cause under Rule 26(b)(2)(B). | Texaco framework controls; undue-burden standard applied in context. |
| Should BIPI be required to search backup tapes, and on what terms? | FTC requests limited backup-tape search to retrieve responsive docs. | BIPI argues search is unnecessary and burdensome. | Court approves limited search as not unduly burdensome; parties to meet-and-confer on method; non-privileged docs to be produced; privilege protections preserved. |
| How should the search be conducted to minimize burden? | No specific method proposed; seek comprehensive search. | Limit scope and use efficient search; avoid duplicative materials. | Directs meet-and-confer; mediator may assist; efficient, narrowed search appropriate. |
| How will privilege issues be treated in backup-tape discoveries? | Privileged work product or attorney-client materials should be protected. | Privilege should be asserted; disclosure redacted where possible. | Documents found that are privileged remain protected under prior opinion; redaction as needed; in-camera review available if disputes remain. |
| What happens if dispute remains after search? | Court should compel production of responsive docs. | Disagreement should be resolved without excessive burden. | Remaining disputes to be submitted to the court for resolution. |
Key Cases Cited
- United States v. Morton Salt Co., 337 U.S. 632 (1950) (limits on subpoenas in ordinary discovery context; judicial deference to agency proceedings)
- Texaco, Inc. v. United States, 555 F.2d 862 (D.C. Cir. 1977) (administrative subpoenas require not unduly disruptive burden; governs standard here)
- Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolution Trust Corp., 5 F.3d 1508 (D.C. Cir. 1993) (undue-burden standard linked to agency inquiry purpose and relevance)
- Sec. & Exch. Comm'n v. Arthur Young & Co., 584 F.2d 1018 (D.C. Cir. 1978) (protective-techniques for administrative subpoenas; use of civil subpoena norms)