Case law has not been particularly precise as to when inside counsel should advise clients to begin the tedious—and costly—task of preserving documents for patent litigation. However, the twin 2011 rulings by the Federal Circuit (Micron II and Hynix II) followed by their respective 2013 remand decisions provide a solid primer. Together, these four decisions highlight a proper path for document preservation and the fatal consequences of failing to comply. Inside counsel should take note because document retention (and its converse cousin, spoliation) can negatively impact the enforceability of a company’s intellectual property while establishing a core defense for the accused infringers. This article examines the recent Rambus rulings, particularly the sanctions meted out for document retention violations and spoliation.
Document retention for litigation can be a vexing issue for inside counsel. As the Rambus decisions show, outside counsel also similarly struggle to avoid the plethora of hazards. Given that spoliation is a fact-intensive inquiry, some background about Rambus and its operations is helpful in understanding the Federal Circuit’s conclusions.
In the Micron case, the district court again held Rambus’ spoliation mandated its patents being held unenforceable because Rambus had acted in bad faith. The court found that Rambus’ document retention policy was adopted as part of its litigation plan (thus making litigation foreseeable), was selectively executed and was designed to destroy unfavorable documents. The court highlighted the alleged instruction from Rambus’ head of intellectual property to its outside counsel that the company needed to be “battle ready.”