Proctor & Gamble filed a suit against Amway under the Lanham Act in 1995. In order to assess damages, P&G and its experts turned to IRI, which provides on-line market share data to companies such as P&G on a rolling basis. The district court dismissed the action based on P&G’s failure to preserve the relevant data, and the Tenth Circuit reversed. The court first ruled that it was an abuse of discretion to dismiss without specifically addressing the Ehrenhaus factors. Then, reviewing the record, the court observed that: “P&G did not possess nor own that data. Although the IRI data in general could be deemed to have fallen within certain of defendants’ broadly-worded discovery requests, it is unclear precisely how P&G was to produce that data to defendants. The most reasonable alternatives appear to have been (a) providing defendants with regular online access to the information, (b) attempting to download and archive the information at P&G’s facilities, or (c) paying IRI to provide the archived data to defendants. That said, each of these alternatives involved a considerable downside. The first option, providing defendants with regular online access to the information, would not necessarily have satisfied defendants (who) were interested in obtaining a concrete set of IRI-related data (i.e., a set of data with established beginning and ending dates) rather than merely access to the rolling database. As for the second option, the record appears to be uncontroverted that P&G did not have the computer capacity to [download the data] and would, in fact, have had to purchase a mainframe computer to do so. The third option, purchasing archival data from IRI, bore a considerable economic expense… in the neighborhood of thirty million dollars.” Hence, the order of dismissal was reversed. P&G v. Haugen, No. 03-4234, 2005 U.S. App. LEXIS 22447 (10th Cir. Oct. 19, 2005).
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