Costly Sanctions for E-Mail Deletion During Patent Litigation: Mosaid Technology Inc v Samsung Electronics Co

In a follow-up to his July 7, 2004 opinion in <em>Mosaid Technologies Inc v Samsung Electronics Co</em>, 01-CV-4340 (USD NJ), Magistrate Judge Hedges has imposed monetary sanctions against Samsung in the amount of US$566,838 for what he termed "extremely reckless behavior" in destroying e-mail relevant to Mosaid's patent infringement claim. In addition to the monetary award, the Judge also finalized instruction language to the jury, permitting the jury to make an adverse inference as a result of the defendant's failure "to produce virtually all technical and other e-mails in the case". The Judge's key finding was that "No reasonable litigant could believe that [Mosaid's definition of "document"] did not include e-mails." In Canada, civil matters in Federal Court are tried by a judge without a jury. However, a finding that documents to be protected for production include e-mails would appear to be consistent with Canadian law. It was held in Reichmann v Toronto Life Publishing Co (1988), 66 O.R. (2d) 65 that "document" includes a computer disc used to store information. A Canadian plaintiff in similar circumstances might well plead the tort of destruction of evidence (also known as "spoliation") separately from the infringement claim. Litigants should be aware that their duty to disclose and produce all documents extends to electronic files, and that failure to produce them can have serious consequences in the ultimate verdict and in the costs of litigation. Source: M P Gallagher, New Jersey Law Journal, September 14, 2004, "Destruction of E-Mails in US Patent Case Results in Sanctions of $566,838", available online at: http://www.law.com/jsp/article.jsp?id=1094073288555. Summary by: Nicholas Whalen