Egregious "Foot-Dragging" By New Merck? -- In Document Production: ENHANCE Securities Litigation

In the coming days, I will lay out this 11 page letter (PDF) in great detail -- but for tonight, know that the plaintiffs' lawyers in various of the pieces of federal ENHANCE securities and ERISA litigation are asking Judge Cavanaugh for relief from Merck's "finger-crossings" -- and may yet move for formal sanctions, against Merck.

Recall that some 5.5 million pages(!) of documentary evidence are being produced by the combined companies. Now -- and there will be other startling revelations in the coming days -- it is jaw slacking that (so far at least) out of those 5.5 million pages, only 22 came from Merck CEO Dick Clark. Similarly, only 140 came from Ex CEO Fred Hassan.

Even more unlikely is the idea that a highly-charged corporate lawyer like Susan Ellen Wolf (who, by dint of her title, would likely be responsible for analyzing the disclosure rules governing such matters) would only have retained ten pages during the entire ENHANCE spectacle -- strains credulity (to put it mildly). But that is exactly what the deliveries thus far would suggest:

. . . .[As of May 27, 2010, New Merck and legacy Schering-Plough] had produced zero documents [each,] for Schering Controller Steven Koehler, Merck CFO Judy Lewent, and Merck Chief Marketing Officer Wendy Yarno; only two documents for Schering CFO Robert J. Bertolini. . . . ten documents for Schering Corporate Secretary and Associate General Counsel Susan Ellen Wolf. . . 22 documents for Merck CEO Richard Clark; 61 documents for President of Merck Research Laboratories Peter Kim; and 140 documents for Schering CEO Fred Hassan. . . .

Defendants have acknowledged that they are obligated to produce document retention policies for both Schering and Merck. Defendants have produced Schering’s document retention policy and stated in both April and May 2010 that “information regarding Merck’s document retention policy” would be forthcoming within a week. . . . [yet none was delivered.]

Plaintiffs respectfully request that the Court compel Defendants to produce Merck’s document retention policy by July 30, 2010. In addition, to the extent any of the emails that were automatically deleted by Merck are preserved on back-up tapes, Plaintiffs respectfully request that the Court compel Defendants to promptly search these tapes for responsive documents. . . .

Merck has been granted until July 19, 2010 to answer these allegations -- and there are probably three or four more posts worth, that I need to fill the audience in on, between now and then.

On many of these fronts, there is simply no plausible basis upon which to resist delivery -- any written policy Merck has (or had) in place, as to document retention and destruction schedules is absolutely a lynchpin to the whole discovery process. Without it, one cannot be sure that any of the relevant still-extant material was turned over.

There is absolutely no chance that Merck didn't have a written document retention policy during the period prior to or during the ENHANCE delays, nor during the period of stock declines occuring thereafter.