updated 04:45 pm EDT, Fri July 27, 2012
Apple calls claim not timely, analysts see little merit to filing
Following Magistrate Judge Paul S. Grewal's granting of an Apple motion for an adverse inference jury instruction against Samsung for continued deletion of emails even when the pre-trial process began, Samsung has filed for one of its own. A previous ruling opened the door for Samsung's filing, saying in a footnote that Apple's alleged failure to issue formal litigation hold notices to its employees on some communications in August 2010 allowed Samsung to argue (at the appropriate time) that Apple is also guilty of evidence spoliation. Apple has filed a motion to strike, due to Samsung's "untimely" filing, given less than two business days remain prior to the trial at the time of the filing.
According to patent analyst Florian Mueller, Samsung's motion "bears an eerie resemblance to a child telling its parents that its sibling was guilty of the same behavior it was just punished for. 'He too did that.'" Mueller continues to call Samsung's motion "transparent" and doesn't see a factual basis for how a formal order that wasn't issued at Apple could be favorable to Samsung's defense, considering that all of the court-required communications were made available by Apple in a timely fashion.
Apple's spoliation claim against Samsung centers on the mySingle internally-developed email system that automatically deletes emails from the server after two weeks. Samsung has faced this problem in US courts seven years ago, and never made any moves to fix the retention problem.
Samsung's argument that there was never any formal declaration by Apple to employees to save communications, and it should have been issued in August 2010 when Steve Jobs and Tim Cook met with Samsung officials to discuss infringement. Apple had been embroiled in litigation regarding cell phone patents since 2009, and loss of communications never arose in a trial with Nokia or HTC before the Samsung battle began.
The Apple-versus-Samsung trial is scheduled to begin on Monday in in San Jose, California. Apple is seeking roughly $2.53 billion in damages, which could be potentially tripled if Samsung is found to be in willful violation of Apple's patents, plus permanent US sales and import injunctions on some Samsung phones and tablets.