On April 21, 2014, the US Court of Appeals for the Federal Circuit, decided a patent infringement suit and it held – among other findings – that the duty to preserve relevant ESI ripens when litigation is reasonably anticipated or foreseeable. The duty to preserve arises at the same moment of the work product doctrine. The Court of Appeals also affirmed a permissive adverse inference instruction for lost electronic materials based on the duty to preserve when litigation is reasonably anticipated or foreseeable.
Previously, the District Court concluded that Defendant violated its duty to preserve relevant evidence when litigation is planned or reasonably foreseen. The district court applied Third Circuit law, under which spoliation occurs when “the evidence was in the party’s control; the evidence is relevant to the claims or defenses in the case; there has been actual suppression or withholding of evidence; and the duty to preserve the evidence was reasonably foreseeable to the party.”
The District Court found that litigation became “reasonably foreseeable” to Defendant no later than the date asserted for “work product” in its privilege log. The District Court exercised discretion, and gave the jury a permissive instruction to make an adverse inference against Defendant, who opposed the decision.
The Court of Appeals denied a new trial on this ground holding that the District Court “was well within its discretion in informing the jury that it may draw an inference that the destroyed documents may have been unfavorable to Glenmark [Defendeant]”.
Related material, Siani v. State University of New York