Synventive Molding Solutions v. Husky Injection Molding Systems, 2009 U.S. Dist. LEXIS 105306 (D. Vt. Mar. 13, 2009), involves a hotly contested patent infringement lawsuit. The case is interesting because the court ultimately orders plaintiff to implement a litigation hold as to personnel likely to possess discoverable information. As follow up to the court’s litigation hold order, the court also orders plaintiff to file a sworn declaration, including, among other things, a description of the “nature and extent of the litigation hold put in place in response to this Order, including the individual [ ] personnel affected by the hold.”
For those involved with implementing legal holds the case is a worthwhile read. It also contains an important lesson. When a party accuses an opponent of not implementing a litigation hold, and preservation of evidence is cloudy at best, it is probably a good practice to implement a litigation hold as soon as possible. For a discussion on how to avoid the result in Synventive v. Husky, read our post on Pinstripe, Inc. d/b/a Acctknowledge v. Manpower, Inc., 2009 U.S. Dist. LEXIS 66422 (ND Okla. Jul. 28, 2009) (Extra Effort by Defendant to Recover Deleted ESI After Failure to Issue Litigation Hold Avoids Harshest Sanctions.)
In Synventive v. Husky, defendant filed a motion to compel plaintiff to implement a litigation hold and other relief related to plaintiff’s alleged discovery abuses. During discovery it became clear to defendant that plaintiff was not taking its preservation obligations seriously. In response to the motion plaintiff argued, in so many words, that there was a lack of evidence of a failure to preserve (meaning “hey if we preserved the evidence then who cares how we preserved it.”) It also made an argument that the Federal Rules of Civil Procedure do not contain a rule requiring implementation of a “litigation hold.” The short answer here is that plaintiff was rebuked on both arguments. We will address the arguments in reverse order.