In February 2009, I reported that in Micron Technology, Inc. v. Rambus Inc., 255 F.R.D. 135 (D. Del. 2009), the U.S. District Court for the District of Delaware held that Rambus could not enforce 12 patents against Micron because it had intentionally destroyed documents prior to filing its lawsuit. The destruction of documents in the context of anticipated or ongoing litigation is call “spoliation of evidence.”
Here, Rambus’ spoliation was extensive and in bad faith. Rambus adopted a company wide document retention policy and employees participated in a “Shred Day”. After retaining outside patent counsel and identifying potential litigation targets, Rambus instructed its outside counsel to purge their patent files and Rambus employees participated in a second “Shred Day.”
The District Court found that the document retention policy was adopted with litigation in mind, and Rambus should have known that some of the documents being destroyed in the second “Shred Day” would have been material and discoverable in the litigation against Micron. The duty to preserve evidence begins when litigation is pending or reasonably foreseeable. The District Court found that Rambus had a duty to preserve the relevant documents instead of purging them. The sanction entered against Rambus for its bad faith spoliation of evidence was an order barring Rambus from enforcing its patents against Micron.
Update: On appeal, the U.S. Court of Appeals for the Federal Circuit upheld the District Court’s finding that Rambus shred the documents knowing that litigation was foreseeable, but remanded the case to the District Court to determine whether Micron proved bad faith or prejudice, perquisites to imposition of the harshest sanction of dismissal. Micron Technology, Inc. v. Rambus, Inc., 645 F.3d 1311 (Fed. Cir. 2013)