The following is excerpted from a January 12, 2012 article by Mark Michels (former litigation manager and discovery counsel at Cisco Systems) in Law.com's Corporate Counsel:
An August Law Technology News article, Federal Circuit Affirms $500K Sanction for Litigation Misconduct, discussed the Eon-Net decision in which misconduct, such as destroying patent prosecution files, resulted in an attorneys fee award. A recent decision from the U.S. District Court for the Eastern District of New York, Metso Minerals, Inc. v. Powerscreen International Dist., Ltd, No. 06–cv–1446 (ED NY Dec. 8, 2011), addresses another unique patent law remedy for patent prosecution file destruction which could significantly limit patent infringement damages.
One type of prejudice recognized by the U.S. Circuit Court for the Federal Circuit is, so-called, "evidentiary prejudice" which "may arise by reason of a defendant's inability to present a full and fair defense on the merits due to the loss of records, the death of a witness, or the unreliability of memories of long past events." See AC Aukerman Co. v. RL Chaides Const. Co., 960 F. 2d 1020, 1033 (Fed. Cir.1992). The Metso defendant claimed that it suffered evidentiary prejudice resulting from the destruction of the patent prosecution files and other records.
...the court held that that defendant did not suffer any evidentiary prejudice because the information in the patent prosecutor's files was either publicly available in the Patent and Trademark Office records, available from other third parties, or was privileged and would not have been produced.
Read the full article here.