Fish & Richardson’s latest jury trial assignment—defending Microsoft Corporation against claims that it infringed a Web browsing patent owned by Robocast Inc.—got tougher in December when a special master concluded that Microsoft should be sanctioned for failing to preserve evidence. Thankfully for Microsoft and its lawyers, the trial judge vacated that sanction on Tuesday, just two weeks before trial.
In a four-page order, U.S. District Judge Richard Andrews in Wilmington rejected a recommendation that he issue an adverse inference finding—an instruction to jurors in the case that Microsoft failed to hold on to documents, and that jurors can infer that the documents were harmful to Microsoft’s defense. Andrews determined that such a severe sanction isn’t warranted because Microsoft’s document destruction was negligent, rather than willful.
