Daniel Seiden form Bloomberg Law reports that a discovery dispute between two whistleblowers and Gilead Sciences, Inc. has emerged in a Pennsylvania federal court. The two False Claims Act whistleblowers, Chris Purcell and Kimberly Groom, are seeking spoliation sanctions against Gilead for the failure to preserve text messages for two employees.
The sanctions by the two whistleblowers stem from previous motions filed by Gilead in an April 22 court order that alleged that Purcell acted in bad faith after his own iPhone lost text messages, causing him to pay attorney’s fees and costs for an expert hired for the cellphone examination. “The court said it couldn’t conclude Purcell acted in bad faith, and therefore a sanction wasn’t appropriate” writes Seiden.
Renewed motions for sanctions were filed by Gilead on May 17, the reason being that they found “Purcell’s explanations for the missing text messages aren’t credible” states Seiden. The whistleblowers discovered that two Gilead employees had also lost text messages from their mobile phones. One employee, a former sales representative, discovered that almost all messages on her phone were gone on the eve of her deposition.
The article asserts that Gilead’s counsel had apparently known about this for several weeks. “The employee testified that neither she nor Gilead did anything to back up or save the texts during the nearly five months they were under subpoena and for more than 13 months after the whistleblowers served document requests seeking them, the whistleblowers said” writes Seiden. The messages that were produced were few and showed that the employee engaged in a fraudulent manner by recruiting a doctor and paying the doctor to participate in an advisory board.
The second claim of spoliation comes from a regional sales director at Gilead that lost all of his texts when his device was water damaged. Similarly to the previous employee, the company had done nothing to preserve the messages and the damaged phone was discarded.
The whistleblowers are seeking sanctions in the form of attorney fees, expenses for the costs incurred for the data recovery attempts, and an instruction to the jury that the deleted messages were likely relevant to the matter at hand. The whistleblowers claim that Gilead engaged in a kickback scheme to physicians for the increase in hepatitis drug prescriptions.
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