updated 08:52 pm EDT, Wed July 25, 2012
Samsung email server automatically deletes emails after two weeks
Magistrate Judge Paul S. Grewal entered an order potentially complicating Samsung's legal battle against Apple in Judge Lucy Koh's court next week. The jury will receive a notification that informs them that Samsung failed to comply with its obligations to preserve e-mail evidence, and jurors may—but don't have to—presume that relevant evidence supporting Apple's claims was destroyed.
Upon selection and trial start, the jury members will be told by Judge Koh that "Samsung has failed to prevent the destruction of relevant evidence for Apple's use in this litigation. This is known as the 'spoliation of evidence.'
"I instruct you, as a matter of law, that Samsung failed to preserve evidence after its duty to preserve arose. This failure resulted from its failure to perform its discovery obligations.
"You also may presume that Apple has met its burden of proving the following two elements by a preponderance of the evidence: first, that relevant evidence was destroyed after the duty to preserve arose. Evidence is relevant if it would have clarified a fact at issue in the trial and otherwise would naturally have been introduced into evidence; and second, the lost evidence was favorable to Apple.
"Whether this finding is important to you in reaching a verdict in this case is for you to decide. You may choose to find it determinative, somewhat determinative, or not at all determinative in reaching your verdict."
According to patent analyst Florian Mueller, given the jury instructions, Samsung will need to have credible rebuttal evidence for every point brought by Apple, or the jurors may automatically assume that Apple could have proven its claim if not for Samsung's willful automatic deletion of e-mails.
Samsung's self-built e-mail system, constructed in 2000, automatically deletes e-mails after two weeks. Samsung did make employees aware of litigation against Apple, and alerted them to keep any potentially relevant e-mails to the case. No follow-through or organized archival program was ever started. Samsung was in compliance with the order after litigation started in 2011, but the standard for evidence spoliation is that litigation must be "reasonably foreseeable" leaving Samsung liable for the destruction of the e-mails since an August 2010 meeting in Korea, attended by Steve Jobs and Tim Cook.
The lack of an organized archival program potentially points to willful violation of Apple's patents, and may inspire credibility doubts in the jury's mind in regards to Samsung's business practices. If Samsung is found to have infringed willfully, some aspects of Apple's $2.53 billion damages claim could be tripled, and continued injunctive relief is more likely.
Samsung has run into trouble before with US courts due to its e-mail system. Eleven years ago, Samsung was told that the two-week deletion of e-mails is inconsistent with retention requirements under US law.
12-07-25 Apple v Samsung Adverse Inference Jury Instruction Order