In this patent infringement case, plaintiff, Phillip M. Adams & Associates (“Adams”), alleged that defendants, ASUSTEK Computer Inc. and ASUS Computer International (collectively “ASUS”) destroyed critical evidence that it had a duty to preserve.  Adams’ allegations of spoliation were based on the assumption that ASUS had obtained Adams’ proprietary test programs and used them in its own attempts to address the disk defect and thus that ASUS should have had evidence related to such use for production during discovery.  ASUS’ failure to produce such evidence, according to Adams, was indicative of spoliation.  ASUS’ response to the allegations of spoliation included a description of its information technology environment including its email management system and practices.  ASUS explained that “its email servers are not designed for archival purposes, and employees are instructed to locally preserve any emails of long term value.”  A determination of what emails were of “long term value” was left to the individual employee; and according to ASUS, email not downloaded by a user from the server resulted in the email being automatically overwritten.  In addition ASUS had no centralized storage for other electronic documents such as user created documents and allowed employees to maintain the documents on their individual work stations.  Further, when ASUS’ employee computers were replaced it was left to the individual employee to determine what information should be migrated to the replacement computer.  Information not identified by the user for migration would not be retained.

The court addressed two other issues in this case the first being the Court’s discussion of ASUS’ “questionable information management practices” and the second issue being whether a corporation can rely on its employees for preservation. Copyright © 2009, K&L Gates LLP