On Wednesday morning, Magistrate Judge Paul S. Grewal granted an Apple motion for an adverse inference jury instruction against Samsung on the grounds of spoliation of evidence. Samsung has now followed up on a footnote in which Judge Grewal stated that Apple's alleged "fail[ure] to issue litigation hold notices in August 2010 is irrelevant to the court's determination here. Samsung has always been free to argue, at the appropriate time, that Apple too is guilty of spoliation".
Samsung says that now is the appropriate time (which I doubt given that the trial will start on Monday) and that the court should not hold Samsung to a different legal standard than Apple concerning the obligation to issue a litigation hold notice to employees in light of reasonably foreseeable litigation. [Update] Apple's first reaction to this motion was to bring a motion to strike this motion because it is, according to Apple, "untimely" (two court days before the trial). [/Update] Samsung even wants the court to tell the jury that litigation was more foreseeable to Apple since it initiated litigation while Samsung reasonably assumed that the parties would reach a business agreement as they did on some other issues in the past.
There are very smart and serious people at work, and this is a strategically important lawsuit for a huge industry, but 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."
I would not make a remark like that if Samsung's motion was at least remotely reasonable. But the objective is transparent, and even before Apple files its reply I can see a number of reasons for which the motion makes no sense whatsoever except that Samsung may hope that a U.S. court will always want to avoid being seen as applying double standards in a major commercial dispute between its own country's and an allied country's most valuable companies. But a ridiculous motion is still a ridiculous motion, and I don't think Judge Koh and Judge Grewal will hesitate to deny a motion that lacks merit.
It's clear that Samsung brings this motion because it's afraid of the impact of the spoliation-of-evidence instruction on its credibility in the jury's eyes. If Samsung won the same kind of instruction against Apple, the jury might think that they're both equally untrustworthy, though in practical terms the lost emails on Samsung's part were most likely very relevant to the willfulness question while it's a safe assumption that even if any emails were lost on Apple's part, they wouldn't make a difference. In fact, Samsung suspects that some emails of inventors of some of the asserted design patents got lost. In a formal sense, such emails may have to be produced, but they don't change anything about validity or infringement. Even if Samsung's motion succeeded, a sophisticated jury would understand this, but it's all about the perception of the kinds of people who usually serve on juries.
But apart from the bearing any internal emails would or would not have had on the trial, the facts couldn't be more different:
In Korea, Samsung employees mostly use an email system named "mySingle" that was developed internally and has a periodic deletion mechanism. Samsung got into trouble with another U.S. court seven years ago because of this, and didn't solve the problem. With all of Apple's litigation, we'd know by now if Apple had ever had any similar problem. Presumably, Apple's employees use an email client that doesn't auto-delete.
Samsung argues that August 2010, when Steve Jobs and Tim Cook met with Samsung to discuss infringement, was the time when Apple should have issued a notice to employees to retain emails that might be relevant to future litigaiton with Samsung. But Apple already sued HTC in March 2010 and had been embroiled in litigation with Nokia since 2009. So there definitely were some retention rules in place at Apple at the time. It's possible that any notices in the HTC and Nokia contexts didn't explicitly mention issues relating to design patents, but in that overall context I doubt very much that Apple lost any emails relating to its intellectual property of any kind.
Samsung would have to show a factual basis on which the material that allegedly may have been lost would have been favorable to Samsung. Its motion doesn't make a showing of harm. By contrast, Apple was able to point to some evidence that supported its theory of willful infringement, and it wasn't unreasonable to extrapolate from the available evidence to what a complete body of evidence might have shown. The fact that Samsung didn't bring a spoliation-related motion before shows that it never really felt prejudiced by anyone or anything.
Samsung deserves its day in court, starting Monday, just like Apple. And as far as the presumed validity and alleged infringement of Apple's asserted intellectual property rights is concerned, it will bring a number of defenses, some of which are pretty good. But there are contexts in which I don't think Samsung has a point. This here is one of them.
Oddly, this "me too" motion will serve to reinforce some people's impression that Samsung copies Apple.
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