Concurrent Ventures, LLC v. Advanced Micro Devices, Inc., No. 25-cv-09567-JST (LB) (N.D. Cal. Sept. 14, 2026), full opinion (PDF)
The co-founder of two patent plaintiffs admitted that he deleted his email every day for more than two years after they filed suit. On September 14 a Northern District of California magistrate judge ordered the plaintiffs to produce their litigation hold notices and their preservation communications. They must also give a sworn account of what was said orally about preservation. The co-founder must sit for a second deposition on the subject. Hold notices are ordinarily privileged. A preliminary showing of spoliation opens them to discovery. Deletion that continued after the complaint was filed supplied that showing, the court reasoned, whatever the parties' dispute about when the duty to preserve first attached.
What happened
Concurrent Ventures and its co-plaintiff XtreamEdge sued Advanced Micro Devices for patent infringement in March 2024. One of the plaintiffs' two founders had deleted his email and his calendar entries every day for decades. That practice continued for more than two years after the complaint was filed. In December 2025, plaintiffs' counsel certified that they had conferred with their clients and taken reasonable steps to preserve ESI. Six months later the plaintiffs disclosed the deletion practice.
At his deposition the co-founder confirmed the practice. He testified that he still deletes personal-account email unless he judges that it relates to the case. His lawyers instructed him not to answer four questions about what counsel had told him on the duty to preserve.
The defendants moved for the preservation materials described above, plus a second deposition. In response, the plaintiffs agreed to produce the materials if ordered, provided the defendants stipulated not to argue subject-matter waiver. The defendants refused. For the second deposition, the plaintiffs offered a short session limited to the questions counsel had blocked.
The court's analysis
Hold notices and preservation communications become discoverable, the court explained, once the requesting party makes a preliminary showing of spoliation. The parties disputed when litigation became reasonably anticipated. The court left that dispute unresolved, because the duty to preserve attached at the latest on the day the plaintiffs sued. Daily deletion for more than two years after that date was, in the court's view, a sufficient preliminary showing of spoliation on its own. A preliminary showing lets a party investigate, the court noted, without any finding that spoliation occurred.
The court treated the plaintiffs' defenses as merits arguments for a later Rule 37(e) motion. The plaintiffs argued that nothing was lost because the co-founder copied the other founder on anything material. That argument may ultimately prevail, the court observed, but the record was contested. The co-founder had testified that he forwarded communications when he thought them worthwhile at the moment. According to the defendants, most of his emails obtained from third parties were absent from the plaintiffs' production. The court allowed that his current habit of keeping only what he judges related to the case might be ordinary relevance-based retention. Even so, the court called the unilateral relevance judgments of a principal with a stake in the case, made two years into the litigation, "at minimum a fair subject of inquiry".
The order protected the plaintiffs against a waiver argument built on the compelled production, the court explained. A disclosure the court compels is not a voluntary one. To remove any doubt, the court added a Rule 502(d) order covering the production and the testimony.
The court largely adopted the defendants' proposed scope for the second deposition. The questions counsel had blocked concerned when the witness received a preservation instruction and what it said. An examiner needs those answers before testing what the witness did in response, the court reasoned. The second examination therefore reaches those questions, the materials produced under the order, and the witness's retention, deletion, and preservation practices. Questions already answered may be re-asked only to lay a foundation.
Why it matters
A party seeking preservation discovery can anchor its preliminary showing to the complaint date rather than to a contested trigger. The trigger fight then waits for the sanctions motion while the discovery proceeds on the deletion nobody disputes. Copies in another custodian's files, or a relevance-based retention practice, may defeat a Rule 37(e) motion later. Both will be tested with the hold notices already in the opponent's hands.
A producing party gets its protection against privilege waiver from a court order, not from the opponent's stipulation. The party should ask for a Rule 502(d) order rather than condition production on a stipulation. Once the movant has made a preliminary showing, an instruction not to answer preservation questions gains the producing party little. The questions return with the documents, on a scope the court sets.
Counsel certifying preservation should confirm that every principal has suspended personal deletion habits before signing. A client who still decides for himself what relates to the case, two years in, invites exactly the inquiry this court allowed.
The full opinion is available as a PDF.
