Judge to water down email tampering instruction [U]
updated 09:30 am EDT, Mon August 20, 2012
Jury instruction forms a major point of contention
[Updated with competing jury verdict forms from Apple and Samsung] On Sunday, US District Court Judge Lucy Koh unexpectedly reversed a lower magistrate's finding and decided to change the jury instructions with regards to the destruction of evidence from Samsung, changing the wording to imply that both Apple and Samsung should be presumed to have destroyed email evidence that could be relevant to the case.
Apple will contest the change, which it won last month after showing that Samsung ignored court orders to preserve emails related to the case and adhered to a policy of destroying all email older than two weeks. Samsung's most recent objection is that the order to preserve was not given equally to both companies at the same time, a matter that Magistrate Judge Paul S. Grewal did not address when he denied Samsung's earlier objection because the motion came too late in the case. Samsung has previously gotten in trouble in US courts due to its automatic email deletion policy and failure to heed court preservation orders.
Apple has maintained that it obeyed the court and preserved all emails relevant to the case. Samsung has noted, however, that there appear to be no emails from then-CEO Steve Jobs related to the patent dispute between the two companies during the relevant period (starting from when Apple sued Samsung over its "slavish" copying to when Jobs died in October of last year).
Despite the fact that there is no evidence that Apple has withheld any such emails, Koh's decision opts to give similar notices about both companies to the jury rather than instruct them on Samsung's deletions only. Koh could have also opted to not mention the evidence spoilation entirely, but chose instead to infer that Apple must also have deleted emails potentially favorable to Samsung's case.
Had the previous instructions stood, it would have painted Samsung as more untrustworthy -- a key point in Apple's barrage of evidence. Apple's attorneys are expected to object vigorously to the change in a hearing today, with the reversal being so unexpected as to strengthen the possibility of an Apple appeal of Koh's decision if the jury's verdict doesn't go its way. The new, more neutral instructions are seen as a major breakthrough for Samsung unless Apple can change the judge's mind. Koh offered no reason for reversing Judge Grewal's ruling in her filing.
Koh's reversal of the previous jury instruction will also throw gasoline on the fire of contention between the two companies regarding their own jury instructions and worksheet. Apple and Samsung have been fighting vociferously over wording and other content in a checklist and worksheet that jurors will be given as they deliberate on the complex case.
Even though closing arguments have been heard in the case, the jury cannot formally begin deliberations until issues on the worksheet are resolved. Judge Koh has expressed exasperation with both parties over the fighting, but both reported on Saturday that no progress had been made in resolving the matter after the judge ordered attorneys from both sides to confer and further narrow the case in order to make the jury's work easier.
The Wall Street Journal has reported that the main issue is that Samsung wants a detailed, dozen-page verdict form that asks jurors to decide on minutia in the case, whereas Apple prefers a simpler, streamlined form that asks the jury to focus only on the larger issues. The two companies will argue over the verdict form before Judge Koh later today as well.
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One problem I have with this new decision versus the old one. Apple is a publicly traded company in the US, therefore it is subject to Sarbanes-Oxley when it comes to its e-mail handling. Samsung is a private company out of South Korea; it can do anything it wants with its e-mail, which explains the two-week destruction policy. If there was any thought that Apple was mishandling their e-mail, they would be in a lot more trouble than a slap on the wrist from a US District court.