Plaintiff Schering Corp. ("Schering") filed a patent infringement action against Apotex Inc. ("Apotex"). Schering brought a motion contending that Apotex spoliated relevant evidence. The motion was based on the omission of allegedly relevant evidence from Apotex' expert report. The expert report was served in October 2011 and Schering notified Apotex of the alleged spoliation a few days after the report was served. Apotex responded to the letter and stated that it had no other additional information to provide because the expert did not save the slides that he analyzed.

Schering did not bring the alleged spoliation to the court's attention for several months. The court found that this delay was significant and that Schering had not adequately explained the delay. "Schering fails to adequately explain why it waited for months, and until the eve of trial, to bring this alleged spoliation to the attention of the Court."

The court found that time was of the essence, particularly because the parties were one month from trial. The court also found that it was significant that the parties had not engaged in the meet and confer process. "Influencing the Court's determination is the fact that this issue was not one over which the parties were engaged in the 'meet and confer' process. In fact, a discussion of whether the information sought should have been produced would be fruitless given the expert did not save the information sought by Schering. The Court, therefore declines at this late stage in the proceedings to impose sanctions upon Apotex based upon the expert's alleged spoliation of information."

Nonetheless, the court did state that examination of the expert would be appropriate on this issue. "Schering may, however, address the significance of the missing information at the time of trial through direct and cross examination of the experts."

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The decision here highlights the importance of bringing these issues to the attention of the court as soon as possible. A delay, particularly a delay that leads to failure to raise the issue until the eve of trial, may lead the court to decline to consider the issue for this reason alone.

Schering Corp. v. Apotex Inc., et al., Case No. 09-6373 (PGS) (D.N.J. March 7, 2012)