CAFC Affirms Adverse Inference Instruction Due to Spoliation

In Sanofi-Aventis Deutschland GMBH v. Abbott GMBH & Co., KG, (PN (auth); RL; EW), the court among other things affirmed a district court providing a permissive adverse inference instruction to the jury which allowed it to infer that email destroyed after litigation had reasonably been anticipated would have been unfavorable to the party destroying it.  Judge Newman and the panel held the district court had not abused its discretion in providing the permissive instruction in part because the evidence showed that (a) email had been used during the relevant period to communicate about the dispute; (b) litigation was anticipated at the time the emails were created; but (c) they were destroyed.

The case to me highlights the constant tension between claiming work product, which protects against disclosure of documents, and document retention, which must kick in at the same time.  Firms who have “teams” divided up may not appreciate the connection enough, and one team may fight for an early date to assert work product, not realizing that it thus implicates spoliation.  Not saying that’s what happened here, but I’ve seen that in practice…