Judge Ward in the Eastern District of Texas issued a ruling in November indicating that Lucent and Lucent’s counsel would be sanctioned in a patent infringement case. Lucent withheld four critical documents during much of the discovery process, revealing them in the eleventh hour in support of it’s expert’s rebuttal report. At the same time, deposition testimony made it clear that Lucent allowed relevant documents to be destroyed in the ordinary course of business, even after the company was placed on notice as to the pendency of the litigation. Following Zubulake, the court indicated that Lucent and it’s counsel should have suspended its routine retention/destruction policy with a “litigation hold”, noting that “failure to retain relevant records during the litigation period allows for a strong adverse inference to be drawn against the party who failed to retain the records.” The court indicated that the conduct was sanctionable, and that it would issue an appropriate remedy. Tantivy Communications v. Lucent Technologies, No. 2:04-79, 2005 U.S. Dist. LEXIS 29981 (E.D.Tex. Nov. 1, 2005).
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