The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6 SAN JOSE DIVISION
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8 SNAPKEYS, LTD, Case No. 19-cv-02658-LHK (VKD)
9 Plaintiff,
ORDER DENYING SNAPKEYS'
10 v. MOTION FOR FINDING OF
SPOLIATION
11 GOOGLE LLC,
Re: Dkt. No. 99
Defendant.
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14 Plaintiff Snapkeys, Ltd. (“Snapkeys”) moves for a finding of spoliation against defendant
15 Google LLC (“Google”) and for imposition of an adverse inference that Google extensively
16 examined and tested Snapkeys’ prototype software. Dkt. No. 99. The Court held a hearing on the
17 motion on May 11, 2021. Dkt. No. 117. The motion is denied.
18 I. BACKGROUND
19 In November 2015, pursuant to a non-disclosure agreement (“NDA”), Snapkeys provided
20 Google with two prototype smart watches containing Snapkeys’ keyboard software application.
21 Dkt. No. 98-1 at ECF 16 (Ghassabian Dep. 37:4-8). Google employee, Clem Wright, examined
22 the watches and then discarded them in July or August 2016. See Dkt. No. 103 at 6.
23 On November 1, 2016, Snapkeys’ counsel sent Google a letter terminating the NDA and
24 demanding that Google cease and desist using any technology or intellectual property provided by
25 Snapkeys. Dkt. No. 99-2 at ECF 2-3. In that same letter, Snapkeys’ counsel demanded that
26 Google return the two watches and threatened possible legal action. Id.
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1 II. DISCUSSION
2 Spoliation “refers to the destruction or material alteration of evidence or to the failure to
3 preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”
4 See Apple, Inc. v. Samsung Electronics Co., 888 F. Supp. 2d 976, 989 (N.D. Cal. 2012). A finding
5 of spoliation may support imposition of an adverse inference instruction. Id. Courts in in this
6 district generally require a party claiming spoliation to establish: (1) the party having control over
7 the evidence had an obligation to preserve it at the time it was destroyed, (2) the records were
8 destroyed with a culpable state of mind, and (3) the evidence was relevant to the party’s claim or
9 defense such that a reasonable trier of fact could find that it would support that claim or defense.
10 Id. at 989-90.
11 In its motion, Snapkeys argues that “Google’s duty to preserve evidence was triggered on,
12 at least, November 1, 2016 when Snapkeys sent Defendant a demand letter.” Dkt. No. 99 at 4.
13 However, in its reply, Snapkeys argues that the NDA imposed a contractual duty to preserve the
14 watches for five years, and that Google should have been on notice that litigation would be
15 reasonably foreseeable if Google breached this duty by destroying the watches. Dkt. No. 107 at 2-
16 3. In short, Snapkeys contends that the NDA itself triggered Google’s duty to preserve evidence.
17 Id. at 3.
18 Spoliation concerns the preservation of evidence for litigation. Snapkeys has failed to
19 establish that Google had an obligation to preserve evidence as of July or August 2016 when Mr.
20 Wright discarded the watches. Google did not receive any notice of a potential legal claim against
21 it until November 1, 2016. Snapkeys argues that a contractual duty to “protect” the watches as
22 confidential information and not “use or disclose” them imposes a duty to preserve evidence for
23 litigation. This argument is implausible and wholly unsupported by any legal authority. Based on
24 the record before the Court, Snapkeys has not shown that litigation was reasonably foreseeable
25 before November 1, 2016, and Google discarded the watches several months earlier. Moreover,
26 Snapkeys has failed to establish that Google discarded the watches with a culpable state of mind.
27 Snapkeys points to no evidence in the record that would even an inference of culpability.
Wl. CONCLUSION
For the reasons explained above, the Court denies Snapkeys’ motion for a finding of
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spoliation.
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IT IS SO ORDERED.
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Dated: May 17, 2021
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7 VOR K. cl
g United States Magistrate Judge
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