By: H. Christopher Boehning and Daniel J. Toal are litigation partners at Paul, Weiss, Rifkind, Wharton & Garrison, New York Law Journal

The U.S. Court of Appeals for the Federal Circuit, in two concurrently issued opinions, addressed one of the most high-profile accusations of spoliation in recent years and considered whether a plaintiff's destruction of a massive collection of documents prior to litigation warranted the ultimate sanction of dismissal.

Although the conduct at issue in these cases was extreme, the circuit's analysis provides important guidance with respect to the document preservation duties of any party preparing to bring, or to defend, a lawsuit in federal court.

The two decisions Hynix Semiconductor Inc. v. Rambus Inc. and Micron Technology Inc. v. Rambus Inc. examined district court decisions from California and Delaware that reached opposite conclusions concerning spoliation of evidence on essentially the same facts.

Central to both cases was a question that has become especially vexing for courts and litigants alike in an era of rapidly evolving and expanding e-discovery obligations: When does the duty to preserve evidence in advance of litigation arise? The Federal Circuit's answer, which is an attempt to give more concrete meaning to the "reasonably foreseeable" standard that nearly all courts apply in this context, underscores the importance of implementing appropriate document preservation measures at the earliest stages of litigation planning.

Rambus' motives were called into question by the facts that it did not have a document-retention policy in place until after the company contemplated suing manufacturers for patent infringement; that the policy it adopted was explicitly connected, in writing, to its litigation or "battle" strategy (as demonstrated by the "BEFORE LITIGATION" presentation); and that Rambus employees were instructed, notwithstanding the policy, to save documents that could be helpful to the company in litigation.

Nevertheless, the Federal Circuit's decisions serve to remind litigants that the duty to preserve evidence can arise well before a lawsuit is actually filed, and even before litigation has become "imminent."

H. Christopher Boehning and Daniel J. Toal are litigation partners at Paul, Weiss, Rifkind, Wharton & Garrison
New York Law Journal - June 07, 2011