Fleming v. Escort, Inc. et al

Filing 305

MEMORANDUM DECISION & ORDER the motion for sanctions due to spoliation of evidence (docket no. 221 ) is GRANTED IN PART AND DENIED IN PART. The second motion for sanctions due to spoliation of evidence (docket no. 223 ) is GRANTED IN PART AND DENIED IN PART. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
HOYT A. FLEMING,
Plaintiff,

Case No. 1:12-CV-066-BLW

v.

MEMORANDUM DECISION AND
ORDER

ESCORT, INC., et al.,
Defendants.

INTRODUCTION
The Court has before it two motions filed by Fleming claiming that Escort has
spoliated evidence relevant to this litigation. The motions are fully briefed and at issue.
For the reasons expressed below, the Court will grant both motions in part.
ANALYSIS
Fleming’s Motion for Sanctions for Spoliation of Radar Detectors
In the motion now before the Court, Fleming claims that Escort failed to retain
certain radar detectors operated by specific source code revisions that were challenged by
Fleming as infringing his patents. Fleming alleges that Escort has committed spoliation
and that the Court should direct a verdict for Fleming on his infringement claims for each
of the detectors that is missing. To resolve this motion, it is necessary to review the
background of this litigation.
In an earlier-filed action (Fleming I), Fleming claimed that defendant Escort
manufactured and sold radar detectors that infringed Fleming’s ‘038 and ‘653 patents. A
Memorandum Decision & Order – Page 1

jury found that Escort had infringed a number of claims of both patents, and awarded
Fleming $750,000. See Special Verdict Form (Dkt. No. 304) in Fleming v. Escort CV-09105-BLW. Specifically the jury found that certain claims of Fleming’s patents were
infringed by the following Escort products: GX65, Passport 9500i, Passport 9500ix, and
Passport IQ. After finding that Escort’s then-attorneys (who have since withdrawn) were
guilty of vexatious conduct, and finding that Fleming was entitled to pre- and postjudgment interest, the Court increased the award to $1,454,404.56 and entered a final
Judgment. See Amended Judgment (Dkt. No. 417). On appeal, the Federal Circuit
affirmed the jury verdict. See Fleming v Escort, 774 F.3d 1371 (Fed.Cir. 2014).
In February of 2012, Fleming filed this action (Fleming II) against Escort and
twenty of its distributors claiming that the radar detectors they sold infringed Fleming’s
‘038 and ‘653 patents, along with a third patent that was not litigated in the earlier case,
the ‘905 patent. The accused products in this case are the GX65, the Pro 500, the
Passport 9500i, the Passport iQ, the Passport 9500ix, the Passport Max, and the Passport
Max 2.
On January 9, 2015, the Court awarded $341,649 in sanctions to Fleming after
finding that Escort and its prior attorneys (who have since withdrawn) falsely claimed
that certain source code – labeled ESC17363 – containing non-infringing features was
the source code used in Escort’s allegedly infringing products. See Memorandum
Decision & Judgment (Dkt. Nos. 208 & 209). Escort’s false claim was an attempt to
mislead Fleming, requiring him to waste substantial time and effort to reveal the fraud.

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With the award of $341,649, the Court compensated Fleming for the fees and costs he
incurred.
On September 4, 2015, the Court awarded an additional $51,461 in sanctions to
Fleming after finding that Escort and its prior attorneys once again produced source code
in discovery in a vexatious manner intended to cause Fleming to waste time and effort.
See Memorandum Decision and Order (Dkt. No. 303). Moreover, the Court held that
Escort spoliated evidence of source code labeled ESC 18692, although the Court held that
Fleming was not prejudiced because the relevant hex code had been maintained and
would allow Fleming to test the functionality of the radar detectors. Id.
Fleming now argues that Escort has spoliated further evidence, specifically the
physical radar detectors that Fleming has alleged infringe his patents. Fleming alleges
that while Escort retained some detectors with hardware modifications but failed to retain
those with software modifications.
Escort produced and sold various versions of the seven allegedly infringing
products in this case. When a version contained what Escort felt was a “significant”
hardware modification, Escort would save a physical sample of that version of radar
detector. See Martin Declaration (Dkt. No. 234-2) at ¶3-4. Escort has retained a physical
sample of 13 of these products. Id. at ¶4.
While Escort retained those detectors with “significant” hardware modifications, it
did not retain a detector with each source code revision. The following table shows the
source code revisions for which Escort has no retained product:

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Product
9500ix Red
9500ix
GX65
GX65 No Ku
Pro500
Passport iQ
MAX
MAX 2

Source Code Revisions
A, B, C, D, E, F, G, H, I, K, and L
N, O, P, Q, R, S, T, U, V, W, X, Y, Z, and AA
G, I, J, K, and L, and M
B
A and C
B, C, E, and F
B, C, D, F, G, H, and I
A, B, and C

Fleming argues that Escort’s failure to retain a separate radar detector with each
source code revision makes it impossible for him to demonstrate how the radar detector
works, and consequently makes it impossible for him to prove infringement. Escort
responds that it had no duty to retain copies of the detectors and that, in any event, it can
re-create the missing detectors.1
Fleming has the burden of establishing spoliation by demonstrating that Escort
destroyed documents or other items and had “some notice that the documents were
potentially relevant to the litigation before they were destroyed.” Ryan v. Editions Ltd.
West, Inc., 786 F.3d 754, 766 (9th Cir. 2015). Spoliation of evidence “raises a
presumption that the destroyed evidence goes to the merits of the case, and further, that
such evidence was adverse to the party that destroyed it.” Apple Inc. v. Samsung, 888
F.Supp.2d 976, 998 (N.D.Cal.2012). The finding of spoliation shifts the burden of proof
“to the guilty party to show that no prejudice resulted from the spoliation” because that

1

Fleming’s table originally included international products that Escort argued were never sold in the United States
and thus are not at issue in this case. Fleming did not rebut that argument, and hence the Court has removed those
revisions from the table. Escort has also argued that not every source code revision was actually marketed, but
Escort has not identified any specific revision in this table that is improperly listed.

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party “is in a much better position to show what was destroyed and should not be able to
benefit from its wrongdoing.” Id. The Court must determine if Escort committed
spoliation and, if so, whether prejudice to Fleming results.
If Escort disposed of the radar detectors before it had notice that they were
relevant to this litigation, it would have a defense to Fleming’s spoliation charge. See
Performance Chevrolet Inc. v. Market Scan Information Systems, Inc., 2008 WEL
4726432 (9th Cir. 2008 (unpublished disposition). But Escort makes no claim that it is
entitled to this defense.
Escort does raise various arguments that it had no obligation to retain detectors
with these source code revisions, but the arguments are specious: Escort itself relies on
the revisions in its non-infringement contentions. See, e.g., Exhibit 15 (Dkt. No. 241-3).
There, Escort identifies certain lines of source code contained in these revisions to argue
that it did not infringe Fleming’s patents. See, e.g., Exhibit 15 (Dkt. No. 241-3). In
essence, Escort now claims that although the source code revisions are important enough
to protect it from infringement, Fleming is not entitled to test Escort’s claims by
evaluating the radar detectors that contained those revisions. To state that argument is to
refute it.
While Escort downplays the importance of having an actual physical radar
detector running the hex code, Escort itself used the operation of a radar detector to argue
that it was not trying to deceive Fleming. In a recently issued decision, the Court adopted
Escort’s argument that the actual operation of a radar detector so clearly depicted a
directional arrow that Escort could not have been trying to deceive Fleming into
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believing that source code provided by Escort in discovery – that did not display the
arrow – was used to operate that product. See Memorandum Decision (Dkt. No. 303) at
p. 6. Thus, Escort is seeking to deny Fleming the very benefits it received from an
evaluation of a radar detector running the code.
Not only Escort but also the Court relied upon the appearance and operation of the
physical detectors. In finding questions of fact over whether the GX65 was the same
product as the Pro 500, the Court relied on the physical differences between the products.
See Memorandum Decision (Dkt. No. 138) at pp. 3-4. In a separate decision, the Court
found important physical differences between the 9500ix in Fleming I and the “new”
version of the 9500ix in Fleming II. See Memorandum Decision (Dkt. No. 178) at pp. 2324. Thus, the operations of the physical detectors has been important to both Escort and
the Court, and Escort’s attempt to minimize their importance must be rejected.2
For all of these reasons, the Court finds that Escort has committed spoliation by
failing to retain a physical version of the radar detector using each source code revision
noted in the table above. The burden now shifts to Escort to show a lack of prejudice.
Escort argues that Fleming is not prejudiced because Escort “has retained all the
separate [hex] code versions and can load any particular software version into a physical

2

Escort argues that it would be burdensome and costly to preserve a sample of each detector with each
software revision. Indeed, a similar argument was the driving force behind the amendment to Rule 37(e),
taking effect later this year, recognizing the high cost of preserving electronically stored information and
requiring bad faith before a sanction like an adverse jury instruction could be imposed. But assuming that
preserving the detectors would impose a heavy burden, Escort should have contacted Fleming to work out
the logistics rather than send Fleming on the fools’ errand of trying to purchase detectors from the market
place, an issue that will be discussed further below.

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sample and produce it for whatever purpose [Fleming] requires in this case.” See Defense
Brief (Dkt. No. 234) at p. 9. This would appear at first glance to alleviate any prejudice.
After all, if Escort can recreate that which was spoliated, there should be no prejudice.
See Oleksy v. General Electric Co., 2014 WL 3820352 (N.D.Ill. Aug. 1, 2014) (ordering
defendant to recreate source code that it failed to preserve).
But there is a flaw in Escort’s analysis. Escort’s re-creation of the missing
detectors requires the Court and Fleming to trust Escort – to trust that the re-created
detectors operate as the originals did, and that the hex code is the same as that loaded into
the originals.
Yet Escort has done nothing to earn that trust. Consequently, if the Court allows
Escort to re-create the detectors, Fleming is necessarily compelled to engage in a
substantial effort to verify the authenticity of the re-created radar detectors. This will be
a difficult task because some of the boards and components used in the originals are no
longer available. That effort will likely include numerous depositions and the hiring of
an expert to conduct a verification analysis, among other things.
Thus, Escort’s argument that any prejudice to Fleming is alleviated because it can
re-create the missing detectors is specious – Fleming will be prejudiced by being forced
to engage in a substantial and expensive verification process. Even ordering Escort to
pay those expenses will not relieve Fleming from the prejudice of having to undertake the
immense time and effort involved in the verification process. Because the prejudice is
profound even if Escort re-creates the missing detectors, the Court finds that Escort has
not carried its burden of showing a lack of prejudice to Fleming.
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Having held that Fleming has carried its burden of proving spoliation, and that
Escort has failed to carry its burden of a lack of prejudice, the Court now turns to the
remedy issue. Fleming seeks a finding that for each revision for each product in the table
above, Escort has infringed Fleming’s patents.
Upon a finding of spoliation, the Court has “discretion to impose sanctions
pursuant to its inherent power.” Ryan, 786 F.3d at 766. “Because of their very potency,
inherent powers must be exercised with restraint and discretion.” Chambers v. NASCO,
Inc., 501 U.S. 32, 44-45 (1991).
If the Court granted Fleming’s request it would be granting a directed verdict that
48 versions of 8 different product models infringed Fleming’s patents. That is a severe
remedy in this case where Escort has maintained the hex codes and has committed to recreating all the missing radar detectors. The Court must consider whether there is a
“lesser sanction that will avoid substantial unfairness to the opposing party.” Apple, 888
F.Supp2d at 992. Given the direction to use its inherent authority with “restraint and
discretion,” the Court finds that sanctions other than a directed verdict would be more
appropriate in this case.
One of those sanctions involves instructing the jury about the spoliation and the
adverse inference that arises from it. This Court has “broad discretionary power” to
admit evidence of the spoliation and “permit a jury to draw an adverse inference from the
spoliation against the party . . . responsible for that behavior.” Glover v. BIC Corp., 6
F.3d 1318, 1329 (9th Cir. 1993). This jury instruction is not predicated on a finding that

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the party spoliating the evidence acted in bad faith – it is enough that the party had notice
that the material was of “potential relevance to the litigation.” Id.
The analysis behind the adverse inference jury instruction was explained in
Akiona v. U.S., 938 F.2d 158, 161 (9th Cir.1991). There, the Ninth Circuit quoted with
approval then-Judge Breyer’s opinion in Nation-Wide Check Corp. v. Forest Hills
Distributors, 692 F.2d 214, 218 (1st Cir.1982), identifying two reasons why the trier of
fact should be permitted to draw an adverse inference from the destruction of a relevant
piece of evidence. The first reason is evidentiary: When a party destroys evidence,
knowing that it is relevant to pending litigation, we presume that that party is “more
likely to have been threatened” by that evidence than is a party who preserves that
evidence. The second reason is “prophylactic and punitive”: Permitting the factfinder to
draw an adverse inference from the destruction of evidence deters the destruction of
evidence and provides an incentive to preserve carefully relevant evidence. Akiona, 938
F.2d at 161 (citing Nation-Wide, 692 F.2d at 218).
That analysis applies with equal force in this case. The Court will accordingly
order that the jury shall be instructed that Escort spoliated evidence and that it may draw
an adverse inference against Escort from that conduct.
As an additional sanction under its inherent powers, the Court may award
sanctions in the form of attorneys’ fees against a party or counsel who acts “in bad faith,
vexatiously, wantonly, or for oppressive reasons.” Leon v. IDX Sys. Corp., 464 F.3d 951,
961 (9th Cir.2006). This includes the authority to impose monetary sanctions in the

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amount of extra discovery costs caused by spoliation, including the cost of the sanctions
motion. Id.
In determining whether Escort acted in bad faith in disposing of the radar
detectors, the Court may consider its history in this case. In re Walsh, 711 F.3d 1120,
1129 n. 45 (9th Cir. 2013). That history, as discussed in detail above, demonstrates that
Escort has pursued a strategy of wearing Fleming down through vexatious conduct in
discovery.
Confronted with a consistent pattern of malfeasance, the Ninth Circuit has rejected
claims of mistake or a lack of intent to obstruct. See Lahiri v. Universal Music and Video
Distribution Corp., 606 F.3d 1216, 1221 (9th Cir. 2010) (relying on the “history of this
litigation” to reject counsel’s claim of “mistake” and affirm finding that he acted in bad
faith). Escort’s history similarly disposes of its excuses in this case. Here, Escort failed
to maintain the radar detectors despite knowing of their relevance to this litigation –
Escort knew of their relevance because it relied on the separate revisions in the source
code operating those detectors to defend itself from Fleming’s charges in this case.
Despite knowing of their relevance, Escort disposed of them and then responded to
Fleming’s request to produce all detectors by directing Fleming to “purchase such
products on the open market.” See Exhibit 7 (Dkt. No. 221-7).
When that response is placed in context, Escort essentially told Fleming to “go
chase your tail.” Escort made it impossible for Fleming to buy each source code revision
of its products on the open market, because Escort did not even reveal the revisions until
7 months after it told Fleming to go to market. See Exhibit 7 (Dkt. No. 221-7) & Exhibit
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8 (Dkt. No. 221-8). Moreover, even after Escort finally revealed the various revisions,
Fleming had to buy the product and deconstruct it to determine which revision it
contained. And even then, many of the detectors sold in the past were modified so they
no longer were operated by the original source code, as Escort admits. See E-mail (Dkt.
No. 221-5). Escort knew all of this when it directed Fleming to buy the detectors on the
market.
Escort’s entire course of conduct, viewed in light of its history in this case,
convinces the Court that Escort acted in bad faith in disposing of the radar detectors.
Hence, the Court will award monetary sanctions in addition to the jury instruction
sanction discussed above. The full list of sanctions is set forth below:
1. The jury shall be instructed that Escort spoliated evidence and that it may draw
an adverse inference against Escort from that conduct;
2. Escort shall immediately manufacture the missing radar detectors with the
source code revisions contained in the table above;
3. Escort shall pay the attorney fees and costs incurred by Fleming in bringing
this motion and all accompanying exhibits and filings;
4. Escort shall pay the attorney fees and costs incurred by Fleming to verify the
authenticity of the re-created radar detectors. This will include all costs and
fees incurred in taking depositions and conducting other discovery in the
verification process.
5. Escort shall pay any expert fees incurred by Fleming to verify the authenticity
of Escort’s re-creation of the missing radar detectors;
6. The Court may consider further sanctions if the verification process reveals
information that so requires.
Fleming’s Motion for Sanctions for Spoliation of Source Code Version 63
In this motion, Fleming argues that Escort spoliated source code labeled Version
63, and seeks a finding of infringement concerning the product that source code operated,
the 9500ix. The source code Version 63, when transformed into hex code, operates the
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9500ix radar detector. The Court has previously explained the difference between source
code and hex code and will not repeat that discussion here. See Memorandum Decision
(Dkt. No. 303).
There is no doubt that Version 63 has been, from the very date of its creation,
relevant to this litigation. Fleming filed this lawsuit in February of 2012 and named the
9500ix as one of the infringing products. Escort’s engineer Jeff Stevens created Version
63 to operate the 9500ix in July of 2012, about 5 months after this lawsuit was filed. See
Stevens Declaration (Dkt. No. 239-3) at ¶¶ 19. Because Escort was on notice that the
9500ix was accused of infringing Fleming’s patents, and because software is the obvious
key to an infringement action against products operated by software, Escort had a clear
duty to retain Version 63.3 Ryan, 786 F.3d at 766.
Version 63, as originally compiled by Stevens, no longer exists. Stevens explains
that he failed to keep a copy of Version 63, but is able to re-create it because he recalls
what changes he made to Version 62 to create Version 63. Specifically, he recalls having
start-up problems with Version 62 because two lines of source code were transposed.
After correcting these two lines, Stevens defined the new version as Version 63. In his
own words, Stevens explains that
I was asked to provide source code for version 63 for production in this
litigation. In responding that request, I realized that I had not kept a copy of
version 63 as it had been compiled on July 13, 2012, but instead, had changed
3

Early in this litigation, the Court dismissed products fully litigated in Fleming I – including the 9500ix –
but expressly limited its holding to “those infringing devices that have been litigated” in Fleming I. See
Memorandum Decision (Dkt. No. 61) at p. 8. It is undisputed that the 9500ix detector operated by the
source code Version 63 was not litigated in Fleming I. Thus, the Court’s opinion has no impact on
Escort’s duty under Local Rule 3.4 to produce Version 63, and Escort does not argue to the contrary.
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that version and saved it as version 64 due to the subsequent revisions to
support foreign models. However, I did have a copy of version 62, and I was
able to recall the error in the startup process which I had corrected prior to
compiling version 63. Also, the lines of code that corrected this error were
included in the saved version 64. Accordingly, I provided version 62 for
production in this litigation, along with a text file with the name
MODIFICATIONS.txt explaining how to correct the error in the startup
process that was corrected in version 63, which was the only change needed
so that the source code would produce the same hex file as I originally
compiled for version 63 on July 13, 2012.
See Stevens Declaration (Dkt. No. 239-3) at ¶ 19. Because there is no dispute over the
relevance of Version 63 to this litigation, and no dispute that the original version no
longer exists, the Court finds that Escort has committed spoliation of Version 63.
Spoliation of evidence “raises a presumption that the destroyed evidence goes to
the merits of the case, and further, that such evidence was adverse to the party that
destroyed it.” Apple Inc. v. Samsung, 888 F.Supp.2d 976, 998 (N.D.Cal.2012). The
finding of spoliation shifts the burden of proof “to the guilty party to show that no
prejudice resulted from the spoliation” because that party “is in a much better position to
show what was destroyed and should not be able to benefit from its wrongdoing.” Id.
Escort must carry the burden of showing that Fleming is not prejudiced by the loss of
Version 63.
At this point, the facts are similar to those resolved by the Court regarding source
code Version 2.46 contained in ESC 18692. See Memorandum Decision (Dkt. No. 303)
at pp. 8-10. There, although Escort spoliated the original source code Version 2.46, it
had retained the original hex code Version 2.46. Escort, after a long delay, told Fleming
how to re-create the source code Version 2.46. When this re-created source code was
Memorandum Decision & Order – Page 13

compiled into hex code and compared with the original retained hex code by an
independent expert Timothy Ramey, the two hex codes were identical. This identity
between the original hex code and the re-created hex code convinced the Court that the
functionality of the alleged infringing devices was not affected by the spoliation of the
original source code. Because functionality is the key to infringement, the Court found
that Escort had carried its burden of showing no prejudice. Id.
The present case presents similar facts. Escort has retained the original hex code
for Version 63, and provided it to Ramey. Escort also provided source code Version 62
to Ramey. Ramey changed the two lines of source code on Version 62 to re-create
Version 63, and then compiled it into hex code. He then compared the two hex code
versions and found them identical – that is, he found that the hex code from the original
retained Version 63 was identical to the hex code compiled from the re-created source
code Version 63. See Ramey Declaration (Dkt. No. 239-4). Once again, it appears that
the functionality of the challenged products is not affected by the spoliation of the
original source code. Thus, the Court finds that Escort has carried its burden of showing
a lack of prejudice.
This does not, however, exonerate Escort entirely. Although the Court refuses to
grant Fleming’s request for a finding of infringement, the Court does find that Escort has
once again committed vexatious conduct in discovery warranting an award of fees and
costs.
There can be no dispute that Escort had a duty under Local Rule 3.4 to produce
source code Version 63 on the date it was created in July of 2012. But despite having
Memorandum Decision & Order – Page 14

this duty, Escort was silent. It was not until January of 2014, that Escort produced its
Product Compatibility Logs showing that Version 63 operated the 9500ix. Having
learned for the first time that Version 63 operated the 9500ix, Fleming requested that
source code. On June 3, 2014, Escort’s then-counsel Brett Schatz revealed for the first
time that “[w]e understand that version 63 . . . for the 9500ix product may not have been
saved due to an oversight on the designer’s part.” See Exhibit B to Declaration of Schatz
(Dkt. No. 239-8). But Schatz’s letter contained nothing further – specifically, it contained
no explanation as to how Escort intended to correct its spoliation. Fleming had to wait
another additional 6 months – until November 11, 2014 – to receive Escort’s explanation
that Fleming could alter two source code lines on Version 62 to create Version 63.
In other words, despite having an obligation in July of 2012 to produce Version
63, Escort provided no explanation whatsoever until May of 2014, and failed to provide a
full explanation until November 2014, a delay of about 28 months. There is no excuse
for this delay. It is so egregious that it constitutes bad faith and vexatious conduct,
warranting a sanction of attorney fees and costs. The Court will therefore grant
Fleming’s motion to the extent it seeks its fees and costs for preparing this motion and all
accompanying filings.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for sanctions
due to spoliation of evidence (docket no. 221) is GRANTED IN PART AND DENIED
IN PART. It is granted to the extent it seeks a finding that Escort spoliated the radar
Memorandum Decision & Order – Page 15

detector products containing the source code revisions set forth in the table above, and
further granted to the extent it seeks the following sanctions, which shall be imposed on
Escort:
1. The jury shall be instructed that Escort spoliated evidence and that it may draw
an adverse inference against Escort from that conduct;
2. Escort shall immediately manufacture the missing radar detectors with the
source code revisions contained in the table above;
3. Escort shall pay the attorney fees and costs incurred by Fleming in bringing
this motion and all accompanying exhibits and filings;
4. Escort shall pay the attorney fees and costs incurred by Fleming to verify the
authenticity of the re-created radar detectors. This will include all costs and
fees incurred in taking depositions and conducting other discovery in the
verification process.
5. Escort shall pay any expert fees incurred by Fleming to verify the authenticity
of Escort’s re-creation of the missing radar detectors;
6. The Court may consider further sanctions if the verification process reveals
information that so requires.
It is denied in all other respects.
IT IS FURTHER ORDERED, that the second motion for sanctions due to
spoliation of evidence (docket no. 223) is GRANTED IN PART AND DENIED IN
PART. It is granted to the extent it seeks a finding that Escort spoliated source code
Version 63 and has committed bad faith and vexatious conduct warranting an award of
fees and costs to Fleming for preparing this motion and all associated documents. It is
denied in all further respects.
IT IS FURTHER ORDERED, that Fleming shall submit to the Court a petition for
its fees and costs awarded herein. For those fees and costs awarded but not yet incurred,
such as those to be incurred during the verification process, Fleming shall submit a
petition for their award at the appropriate time after they have been incurred.
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DATED: September 22, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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