Everyone knows – or should know – that a party in litigation or contemplating litigation is under a duty to preserve all relevant evidence. One (or more than one) might reasonably question the extent of this duty. Is the duty a negative one (“don’t destroy evidence”) or an affirmative one (“take steps to preserve the evidence”)? Well, the court has just provided some guidance. Phillip M. Adams & Associates LLC v. Lenovo International et al. In that case, the court sanctioned the defendant, even while holding that it may not have intentionally destroyed evidence. The defendant, however, “did not have a designed information management policy taking varying needs into account.” While the plaintiff had not shown that the defendant “mounted a destructive effort aimed at” the evidence, it was “clear” that the defendant’s “lack of a retention policy and irresponsible data retention practices” were responsible for the loss of significant data.
THE LESSON TO BE LEARNED: The duty to preserve evidence now (presumably) includes the affirmative duty of instituting a “coherent” (that is a quote from the Court’s decision – I am not making this up) document – and data – retention policy.
Very interesting situation if you should save evidence if it is harmful and/or helpful.
In cases regarding patent infringement I would think all evidence would be helpful to the person with the patent.