Wyatt Tech. Corp. v. Malvern Instruments, Inc., 2013 U.S. App. LEXIS 9843 (9th Cir. May 16, 2013):

The heft of Wyatt's claims against Malvern--specifically, Wyatt's copyright infringement claims--required Wyatt to proffer some evidence that Malvern's software was substantially similar to Dynamics. L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012). Wyatt, however, never obtained in discovery the source code for Malvern's allegedly infringing software, because Malvern asserted the source code was outside its possession, custody, or control, and in the hands of its British parent company. Wyatt never made any effort to challenge that assertion, nor did it attempt to obtain the source code from Malvern's British parent by other means. Consequently, the record lacked evidence that Malvern's software was substantially similar to Dynamics, and as a result, Malvern was entitled to summary judgment. Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir. 2002); Narell v. Freeman, 872 F.2d 907, 909-10 (9th Cir. 1989).

To compensate for its failure to obtain the crucial piece of evidence, Wyatt seeks a holding that Malvern spoliated the residuum of the source code that was in its possession, thereby entitling Wyatt to an inference that the source code, if produced, would favor its position. The district court did not abuse its discretion in denying such an inference when the allegedly spoliated evidence was lost or destroyed years before Wyatt even held the Dynamics copyrights. See United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002) (noting that spoliation requires the spoliator to have notice that the evidence being destroyed is potentially relevant to litigation). Wyatt now argues, additionally, that Malvern actually had possession, custody, or control of the source code, and therefore withheld it wrongfully during discovery. Wyatt did not advance this argument in the district court, and we will not entertain it now. Biller v. Toyota Motor Corp., 668 F.3d 655, 663 (9th Cir. 2012); Dream Palace v. Cnty. of Maricopa, 384 F.3d 990, 1005 (9th Cir. 2003).