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Brad Frazer: Ban on destroying evidence includes computer code

Brad Frazer: You Oughta Know
Brad Frazer: You Oughta Know

In a criminal case, the prosecution must prove the defendant’s guilt beyond a reasonable doubt. In civil litigation, the standard is the less onerous “preponderance of the evidence.” This means that the party who generally wins is the one who shows that at least 51 percent of the evidence favors his side.

This is why in civil litigation, evidence — including software evidence — is required by law to be protected and preserved. The parties must do nothing that will wrongfully interfere with the other side’s ability to prove its case by a “preponderance” of evidence.

In a patent dispute pending in Idaho federal court, Chief Judge B. Lynn Winmill recently issued an important decision on computer software as evidence. The case, Hoyt Fleming v. Escort Inc. et al., concerns patents owned by Fleming that cover certain functionality of automobile radar detectors. Fleming, an Idaho-based inventor, alleged that Escort infringed his patents. This particular ruling goes to a legal doctrine called “spoliation of evidence.”

Fleming filed a motion asserting that Escort destroyed (“spoliated”) certain radar detectors containing computer code that would help him prove his case. Winmill held that Fleming had demonstrated that certain key detectors and their on-board code had indeed been destroyed by Escort. Winmill called Escort’s arguments attempting to explain away the destruction “specious.” Because the spoliation prejudiced Fleming in his efforts to prove infringement, the court imposed both monetary and nonmonetary sanctions on Escort.

The nonmonetary sanctions consisted of an order that the jury be instructed that Escort wrongfully destroyed evidence and that the jury may therefore properly draw adverse inferences from the destruction. This means that the jury may infer that the reason Escort destroyed the detectors and their on-board code was to conceal evidence of patent infringement. These sanctions followed on the heels of two earlier sanctions awards imposed by Winmill on Escort for bad conduct.

In addition to being an important win for Fleming, Winmill’s well-reasoned opinion sends a clear signal to Idaho litigants that destruction of evidence will not be tolerated. Parties to litigation should be mindful of their serious obligation to preserve and maintain all possibly relevant information or suffer sanctions awards like those imposed on Escort.

Brad Frazer is a partner at Hawley Troxell. bfrazer@hawleytroxell.com; 344-6000. This column appears in the Nov.18-Dec. 15, 2015, edition of the Statesman’s Business Insider magazine.

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