"Massive" Discovery Misconduct Justifies Attorney Fees Award

Following plaintiff's post-Markman stipulation of dismissal and a bench trial finding inequitable conduct, the court granted defendant's motion for attorney fees under 35 U.S.C. § 285 because plaintiff's severed litigation misconduct was exceptional. "While the finding of inequitable conduct alone warrants an award of attorney fees to [defendant], the Court need not rely on that ground, as [plaintiff's] conduct during litigation is surely enough. . . . [Plaintiff] specifically withheld: (1) non-privileged documents; (2) previously privileged documents as to which [plaintiff] affirmatively waived the privilege and which this Court ordered be produced . . . ; and (3) documents on the privilege log relating to precisely those topics waived [plaintiff] . . . when it filed its trial declarations. This misconduct began soon after the case was filed and continued until the Court finally conducted an in camera review of [plaintiff's] privilege log on the eve of trial. Only then, when it was too late to reopen discovery, did the Court discover the massive amount of information withheld from it (and from [defendant]) over the preceding year. Indeed, the extent of [plaintiff's] mischief was so vast that the Court noted it could not delay trial and require production of the documents to [defendant] without appointing a special master to oversee [plaintiff's] production -- to do so would likely be futile."

Regeneron Pharmaceuticals, Inc. v. Merus BV, 1-14-cv-01650 (NYSD March 26, 2018, Order) (Forrest, USDJ)