Patent Litigation and Licensing: Federal Circuit Rules on the Duty to Preserve Evidence

Sullivan & Cromwell LLP - May 20, 2011

On May 13, 2011, the Federal Circuit issued two opinions addressing the duty to preserve evidence in anticipation of commencing patent litigation. The rulings do not establish a bright-line rule for when the duty to preserve documents is triggered, but adopt a foreseeability standard and provide guidance on factors relevant to that determination. In Micron Technology, Inc. v. Rambus Inc., No. 2009-1263, the Federal Circuit affirmed that a patentee, Rambus, had improperly destroyed documents prior to initiating an infringement action, and remanded to the district court for further consideration of the appropriate sanction for that conduct. In a related case, Hynix Semiconductor Inc. v. Rambus Inc., 2009-1299, the Federal Circuit vacated a lower court infringement judgment in Rambus’ favor, and ordered the lower court to reconsider its ruling finding that Rambus had not spoliated evidence in accord with Micron. Taken together, the Rambus opinions reaffirm that the proper standard for determining when the duty to preserve documents attaches is a flexible one based upon the existence of reasonably foreseeable litigation, but emphasize that reasonable foreseeability does not mean that litigation must be immediately imminent or certain.