Spoliation of Evidence: Sanctions versus Advocacy

Charles W. Adams — Tue, 01 Mar 2011 14:15:21 PST

Spoliation of evidence involves the destruction of evidence to prevent its use in either pending or reasonably anticipated litigation. Electronic evidence is easily susceptible to spoliation, and consequently, as electronic discovery has become a major part of modern litigation over the past twenty years, claims of spoliation have increased dramatically, particularly for emails. The courts have responded with various sanctions. A recent survey of reported federal cases shows that the most prevalent sanction for spoliation is the adverse inference instruction in which the jury is directed that it may infer from evidence of spoliation that the destroyed evidence would have been unfavorable to the party who destroyed it. In many cases of spoliation, it may be difficult for the jury to infer what the contents of the destroyed evidence once may have been, however, because the evidence has been destroyed. Other sanctions for spoliation include dismissal, default judgment, issue preclusion, and monetary sanctions.

Two significant decisions in 2010 by prominent federal judges from New York and Texas dealt with the use of adverse inference instructions in the federal courts as sanctions for spoliation. The approaches taken by the courts differed substantially with respect to the culpability of the spoliator required for an adverse inference instruction and the contents of the instructions. However, both courts imposed adverse inference instructions as sanctions.

Using adverse inference instructions as sanctions for spoliation has adverse consequences. Motions for sanctions are time-consuming for both courts and litigants, and as a result of the punitive nature of sanctions, they add to the contentiousness of litigation. In addition, adverse inference instructions may not operate well as sanctions, because adverse inferences are grounded in the logical connection between spoliation and the merits of the case, rather than the policies for sanctions. Instead of sanctioning parties for spoliation through the use of adverse inference instructions, courts should handle most claims of spoliation by allowing parties to offer evidence of spoliation at trial and then argue the adverse inferences from spoliation to the jury.

Allocating Patent Rights Between Earlier and Later Inventions

Charles W. Adams — Tue, 10 Mar 2009 13:10:05 PDT

Allocating Patent Rights Between Earlier and Later Inventions By Charles W. Adams Abstract The patent statutes expressly authorize patents for improvements to earlier inventions, but they do not address the allocation of rights between the patents for the original inventions and the after-arising technology. From an economic standpoint, the allocation of patent rights should depend on the relative contribution of the original inventor and the improver and on the effect that the allocation would have on their respective incentives. Improvements on earlier inventions may give rise to blocking patents in which the permission of both the original inventor and the improver is required for either of them or anyone else to make, use or sell the improvement. These blocking patents may lead to costly negotiations and create the possibility of deadlock in which nobody can exploit an improvement. Blocking patents commonly arise where an earlier invention is combined with an additional component or a new process for making or using a patented product is developed. In addition, several cases arising out of the massive litigation in the 1970’s and 1980’s over the patent rights to polypropylene developed a theory of the enablement requirement for patentability that would permit an additional category of blocking patents for improvements. This precedent has been substantially undercut by a number of recent Federal Circuit decisions, though. As a result, blocking patents now appear to be limited to patents for combinations of an earlier invention with an additional component and processes for making or using products that are subject to patents.

Charles W Adams

Spoliation of Evidence: Sanctions versus Advocacy

Allocating Patent Rights Between Earlier and Later Inventions