Case: 20-147 Document: 25 Page: 1 Filed: 11/03/2020
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: IVANTIS, INC.,
Petitioner
______________________
2020-147
______________________
On Petition for Writ of Mandamus to the United States
District Court for the Central District of California in No.
8:18-cv-00620-JVS-JDE, Judge James V. Selna.
______________________
ON PETITION
______________________
Before DYK, WALLACH, and TARANTO, Circuit Judges.
WALLACH, Circuit Judge.
ORDER
Ivantis, Inc. petitions for a writ of mandamus asking
this court to vacate the United States District Court for the
Central District of California’s order granting an adverse-
inference instruction and to bar the district court from is-
suing any adverse-inference instruction or alternatively to
require the district court to defer consideration of any ad-
verse-inference instruction until the end of trial. Glaukos
Corporation opposes the petition. Ivantis replies.
In April 2018, Glaukos filed the underlying complaint,
alleging that Ivantis’s Hydrus Microstent device used for
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2 IN RE: IVANTIS, INC.
treating glaucoma infringed two of Glaukos’s patents. Dur-
ing discovery, Ivantis informed Glaukos that it was unable
to produce emails prior to April 19, 2017, citing its email
retention policy of deleting emails after 12 months. * Glau-
kos then moved for an adverse jury instruction.
The district court granted Glaukos’s motion, finding
that Ivantis had destroyed evidence despite “Ivantis actu-
ally fore[seeing] this litigation, at least by the beginning of
2017, if not earlier.” Appx7. After 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 con-
cerning copying and willfulness, the court ordered that the
jury could presume the destroyed evidence was favorable
to Glaukos and unfavorable to Ivantis.
A party seeking a writ bears the heavy burden of
demonstrating to the court that it has no “adequate alter-
native” means to obtain the desired relief, Mallard v. U.S.
Dist. Court for the S. Dist. of Iowa,
490 U.S. 296, 309 (1989),
and that the right to issuance of the writ is “clear and in-
disputable,” Will v. Calvert Fire Ins.,
437 U.S. 655, 666
(1978) (internal quotation marks omitted). And even when
those requirements are met, the court must still be satis-
fied that the issuance of the writ is appropriate under the
circumstances. Cheney v. U.S. Dist. Court for the Dist. of
Columbia,
542 U.S. 367, 381 (2004).
It is generally inappropriate to review such discovery
orders by mandamus because a post-judgment appeal is an
adequate means to correct an erroneous adverse-inference
instruction. See Sanofi-Aventis Deutschland GmbH v.
Glenmark Pharms., Inc., USA,
748 F.3d 1354, 1361–63
(Fed. Cir. 2014); Linde v. Arab Bank, PLC,
706 F.3d 92, 119
* Ivantis instituted a litigation hold on April 19,
2018, suspending the deletion of one-year old emails.
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IN RE: IVANTIS, INC. 3
(2d Cir. 2013). Ivantis suggests that it may not be able to
survive such an appeal because, if Glaukos is successful in
obtaining the judgment it seeks, Ivantis could owe more
money than it is worth. But we are not prepared to depart
from the usual practice of waiting until after final judg-
ment to review such orders based on such speculation.
While immediate intervention by way of mandamus
may be appropriate in certain exceptional circumstances to
review novel important legal issues, see In re Seagate Tech.,
LLC,
497 F.3d 1360, 1367 (Fed. Cir. 2007) (en banc), abro-
gated on other grounds by Halo Elecs., Inc. v. Pulse Elecs.,
Inc.,
136 S. Ct. 1923 (2016), we cannot say that such cir-
cumstances have been presented here. Ivantis’s petition
challenges the assessment that it “acted with the intent to
deprive another party of the information’s use in the litiga-
tion.” Fed. R. Civ. P. 37(e). That assessment was based on
the specific sequence of events leading up to the litigation,
including: (1) one of the inventors informing Ivantis in
2009 that he was sure the accused product infringed; (2)
Ivantis instituting its retention policy the same year it re-
tained patent litigation counsel; (3) Ivantis’s CEO circulat-
ing a report in 2017 from an industry analyst who stated
the expectation Glaukos would sue for patent infringement
in 2018; and (4) Ivantis preparing a petition for inter partes
review at least a month before the complaint. We discern
no obvious basic, undecided legal issue underlying the dis-
trict court’s ruling, nor can we say that it was so patently
unreasonable as to warrant mandamus. As to Ivantis’s re-
quest to order the court to defer any intent ruling until
hearing trial testimony, the district court denied that re-
quest as procedurally improper under its local rules for not
raising it until requesting reconsideration, and the court
did not clearly and indisputably err in denying a request
that it was not properly asked to consider.
Accordingly,
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4 IN RE: IVANTIS, INC.
IT IS ORDERED THAT:
The petition for a writ of mandamus is denied.
FOR THE COURT
November 03, 2020 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
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