Virginia IP Law > Troutman Sanders LLP

Kolon sanctioned for spoliation first day of trial: adverse inference instruction forthcoming

As we reported here, the trial between DuPont and a Korean competitor, Kolon Industries, relating to the alleged theft of trade secrets about DuPont’s Kevlar® fiber began on July 21.  That same day, District Judge Robert E. Payne issued a 91-page opinion (found here) sanctioning Kolon for deleting emails and files relevant to DuPont’s trade secrets claims.  Judge Payne found that “the actions taken by the key employees discussed herein were intentional, in bad faith and quite serious,” but he refused to grant default judgment as requested by DuPont and instead will instruct the jury that Kolon destroyed relevant information after learning of the suit and that such information would have been helpful to DuPont and harmful to Kolon. 

Interestingly, this decision sanctioning Kolon follows an April 27, 2011, decision by Judge Payne denying Kolon’s motion for sanctions against DuPont for its alleged spoliation of evidence. In that instance, Judge Payne found that, although DuPont may have deleted and lost relevant documents and information, it had acted reasonably, did not breach any duty to preserve relevant documents, and, in any event, did not cause any prejudice to Kolon. That opinion can be found here.

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