Federal Circuit Denies Petition For Writ Of Mandamus Requesting It Vacate The District Court’s Spoliation-Based Sanctions Order
On Tuesday, November 3, 2020, the Court of Appeals for the Federal Circuit (CAFC) denied a petition for a writ of mandamus requesting the CAFC vacate the United States District Court for the Central District of California’s (C.D. Cal.) order granting an adverse inference instruction in connection with Ivantis Inc.’s failure to preserve relevant evidence for litigation. In re Ivantis, Inc., F.3d __, (Fed. Cir. Nov. 3, 2020). The CAFC found no reason to depart from the usual practice of waiting until after final judgment to review the C.D. Cal.’s order.
In April 2018, plaintiff Glaukos Corporation brought an action alleging that an Ivantis product infringes its patents. Ivantis had an email retention policy that deleted emails after 12 months. Ivantis instituted a litigation hold only after the filing of the action and was unable to produce older emails. However, the district court found that Ivantis anticipated patent infringement litigation from Glaukos as early as 2009 when Glaukos contacted Ivantis regarding the patents. That same year, Ivantis retained patent litigation counsel to advise it on the at-issue patents. Moreover, in 2017, industry analysts reported that Glaukos would soon assert its patents against Ivantis. Ivantis’ CEO circulated these reports within the company and Ivantis prepared a petition for inter partes review of the Glaukos patents at least a month before Glaukos filed the complaint. As such, the district court found that Ivantis intended to deprive Glaukos of the emails in litigation by maintaining a policy that deleted emails after 12 months despite anticipating the litigation. The district court also found that Glaukos was prejudiced in being deprived of potential evidence concerning copying and willfulness and ordered that the jury could presume the destroyed evidence was favorable to Glaukos and unfavorable to Ivantis.
The CAFC found that the writ for mandamus was inappropriate at this time because a post-judgment appeal is an adequate means to correct an erroneous adverse-inference instruction. Ivantis argued that it may not survive as a company to that stage if an adverse trial verdict were to issue. The CAFC rejected Ivantis’ argument as speculation and found no reason to depart from the usual practice of waiting until after the final trial decision to review the C.D. Cal.’s order.
The decision highlights the critical importance of ensuring that timely and appropriate litigation holds are put in place.