NOTE: This order is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

In re: IVANTIS, INC.,

Petitioner

______________________

2020-147

______________________

On Petition for Writ of Mandamus to the United States 

District Court for the Central District of California in No. 

8:18-cv-00620-JVS-JDE, Judge James V. Selna.

______________________

ON PETITION

______________________

Before DYK, WALLACH, and TARANTO, Circuit Judges.

WALLACH, Circuit Judge.

O R D E R

Ivantis, Inc. petitions for a writ of mandamus asking 

this court to vacate the United States District Court for the 

Central District of California’s order granting an adverseinference instruction and to bar the district court from issuing any adverse-inference instruction or alternatively to 

require the district court to defer consideration of any adverse-inference instruction until the end of trial. Glaukos 

Corporation opposes the petition. Ivantis replies. 

In April 2018, Glaukos filed the underlying complaint, 

alleging that Ivantis’s Hydrus Microstent device used for 

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2 IN RE: IVANTIS, INC.

treating glaucoma infringed two of Glaukos’s patents. During discovery, Ivantis informed Glaukos that it was unable 

to produce emails prior to April 19, 2017, citing its email 

retention policy of deleting emails after 12 months.* Glaukos then moved for an adverse jury instruction. 

The district court granted Glaukos’s motion, finding 

that Ivantis had destroyed evidence despite “Ivantis actually fore[seeing] this litigation, at least by the beginning of 

2017, if not earlier.” Appx7. After concluding that Ivantis

intended to deprive Glaukos of the emails in litigation in 

maintaining a policy that deleted emails after 12 months

despite anticipating the litigation and concluding Glaukos 

was prejudiced in being deprived of potential evidence concerning copying and willfulness, the court ordered that the 

jury could presume the destroyed evidence was favorable 

to Glaukos and unfavorable to Ivantis. 

A party seeking a writ bears the heavy burden of 

demonstrating to the court that it has no “adequate alternative” means to obtain the desired relief, Mallard v. U.S. 

Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 309 (1989), 

and that the right to issuance of the writ is “clear and indisputable,” Will v. Calvert Fire Ins., 437 U.S. 655, 666 

(1978) (internal quotation marks omitted). And even when 

those requirements are met, the court must still be satisfied that the issuance of the writ is appropriate under the 

circumstances. Cheney v. U.S. Dist. Court for the Dist. of 

Columbia, 542 U.S. 367, 381 (2004).

It is generally inappropriate to review such discovery 

orders by mandamus because a post-judgment appeal is an 

adequate means to correct an erroneous adverse-inference 

instruction. See Sanofi-Aventis Deutschland GmbH v. 

Glenmark Pharms., Inc., USA, 748 F.3d 1354, 1361–63 

(Fed. Cir. 2014); Linde v. Arab Bank, PLC, 706 F.3d 92, 119 

* Ivantis instituted a litigation hold on April 19, 

2018, suspending the deletion of one-year old emails. 

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IN RE: IVANTIS, INC. 3

(2d Cir. 2013). Ivantis suggests that it may not be able to 

survive such an appeal because, if Glaukos is successful in 

obtaining the judgment it seeks, Ivantis could owe more 

money than it is worth. But we are not prepared to depart 

from the usual practice of waiting until after final judgment to review such orders based on such speculation. 

While immediate intervention by way of mandamus 

may be appropriate in certain exceptional circumstances to

review novel important legal issues, see In re Seagate Tech., 

LLC, 497 F.3d 1360, 1367 (Fed. Cir. 2007) (en banc), abrogated on other grounds by Halo Elecs., Inc. v. Pulse Elecs., 

Inc., 136 S. Ct. 1923 (2016), we cannot say that such circumstances have been presented here. Ivantis’s petition

challenges the assessment that it “acted with the intent to 

deprive another party of the information’s use in the litigation.” Fed. R. Civ. P. 37(e). That assessment was based on 

the specific sequence of events leading up to the litigation, 

including: (1) one of the inventors informing Ivantis in 

2009 that he was sure the accused product infringed; (2)

Ivantis instituting its retention policy the same year it retained patent litigation counsel; (3) Ivantis’s CEO circulating a report in 2017 from an industry analyst who stated 

the expectation Glaukos would sue for patent infringement 

in 2018; and (4) Ivantis preparing a petition for inter partes 

review at least a month before the complaint. We discern 

no obvious basic, undecided legal issue underlying the district court’s ruling, nor can we say that it was so patently 

unreasonable as to warrant mandamus. As to Ivantis’s request to order the court to defer any intent ruling until

hearing trial testimony, the district court denied that request as procedurally improper under its local rules for not 

raising it until requesting reconsideration, and the court 

did not clearly and indisputably err in denying a request 

that it was not properly asked to consider. 

Accordingly, 

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4 IN RE: IVANTIS, INC.

IT IS ORDERED THAT:

The petition for a writ of mandamus is denied.

November 03, 2020

Date

FOR THE COURT

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

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