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Case law has not been particularly precise as to when inside counsel should advise clients to begin the tedious—and costly—task of preserving documents for patent litigation. However, the twin 2011 rulings by the Federal Circuit (Micron II and Hynix II) followed by their respective 2013 remand decisions provide a solid primer. Together, these four decisions highlight a proper path for document preservation and the fatal consequences of failing to comply. Inside counsel should take note because document retention (and its converse cousin, spoliation) can negatively impact the enforceability of a company’s intellectual property while establishing a core defense for the accused infringers. This article examines the recent Rambus rulings, particularly the sanctions meted out for document retention violations and spoliation.

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