Federal Circuit Denies Petition for Writ of Mandamus Over Unfavorable Jury Instructions

Yesterday, the United States Court of Appeals for the Federal Circuit (CAFC) issued an order in In re: Ivantis, Inc. denying a petition for a writ of mandamus filed by Ivantis. The petition asked the CAFC to vacate an order of United States District Court for the Central District of California “granting an adverse-inference instruction and to bar the district court from issuing any adverse-inference instruction or alternatively to require the district court to defer consideration of any adverse-inference instruction until the end of trial.”

Adverse Jury Instruction

In April 2018, Glaukos Corporation filed a complaint against Ivantis, alleging that Ivantis’s Hydrus Microstent device used for treating glaucoma infringed two of Glaukos’s patents. Ivantis was unable to produce emails prior to April 19, 2017 during discovery, noting that its email retention policy was to delete emails after 12 months. The district court granted a motion filed by Glaukos for an adverse jury instruction, “concluding that Ivantis intended to deprive Glaukos of the emails in litigation in maintaining a policy that deleted emails after 12 months despite anticipating the litigation and concluding Glaukos was prejudiced in being deprived of potential evidence concerning copying and willfulness.” Thus, the district court ordered that “the jury could presume the destroyed evidence was favorable to Glaukos and unfavorable to Ivantis.”

Writ of Mandamus

Initially, the CAFC noted that, as the party seeking a writ, the burden was on Ivantis to demonstrate to the CAFC that it had “no ‘adequate alternative’ means to obtain the desired relief.” The CAFC also noted that it is generally inappropriate to review discovery orders by mandamus because an adequate alternative remedy exists as a post-judgment appeal. Although Ivantis suggested that it may not be able to survive such an appeal because it could end up owing more money that it is worth, the CAFC did not depart from the “usual practice of waiting until after final judgment to review such orders based on such speculation.”

Noting that “immediate intervention by way of mandamus may be appropriate in certain exceptional circumstances to review novel important legal issues,” the CAFC explained that such circumstances were not presented in this case. Ivantis’s petition challenged the assessment that it “acted with the intent to deprive another party of the information’s use in the litigation,” but the assessment was based specific sequence of events leading up to the litigation, including in part: “one of the inventors informing Ivantis in 2009 that he was sure the accused product infringed; [and] Ivantis instituting its retention policy the same year it retained patent litigation counsel.”

Thus, the CAFC stated: “[w]e discern no obvious basic, undecided legal issue underlying the district court’s ruling, nor can we say that it was so patently unreasonable as to warrant mandamus” and denied Ivantis’s petition.

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Author Rangizzz
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