Counsel’s Removal of Non-Disclosure Footer From Purported Prior Art Document Warrants Award of Monetary and Evidentiary Sanctions

The court imposed monetary sanctions against defense counsel for removing a non-disclosure footer from an exhibit in support of defendant's motion to dismiss on the ground that the accused device was publicly disclosed prior art. "I do not find that [counsel] intentionally doctored the Power Point presentation or intentionally proffered false or misleading evidence to the Court when he filed [defendant's] motion to dismiss. . . . However, I do find that his conduct was reckless . . . both as to the initial filing of the Power Point presentation from which the non-disclosure footer was removed, and as to his failure to undertake a serious investigation as to why the error occurred and to timely bring the matter to the Court’s attention. The gist of [defendant's] motion to dismiss was that the presentation to [an automotive group] was a public disclosure that invalidated Plaintiff’s claim as prior art. The basis of the motion would therefore be open to question in the light of evidence that the presentation was not public, but subject to confidentiality and non-disclosure. . . . [A] reasonable attorney who became aware that he or she had inadvertently filed an exhibit that had deleted this information would be horrified. . . . Instead, after being informed that he filed an exhibit that he should have known had relevant information removed, he dug in."

Webasto Thermo & Comfort North America, Inc. et al v. Bestop, Inc., 2-16-cv-13456 (MIED August 9, 2018, Order) (Whalen, MJ)