[Update] On Friday morning local time, Samsung appealed this denial to Judge Koh, asking for a de novo determination (a review without any deference to Judge Grewal's decision), arguing that the latter failed to state a particular deadline by which Samsung would have had to file its motion for an adverse inference jury instruction and rehashing, as always, the argument that either both sides should be subject to such an instruction, or neither one. I doubt that Judge Grewal will be overruled, but Samsung wants to preserve the issue for an appeal. Judge Koh already complained in court that the parties re-raise the same issues again and again in new motions, and Samsung does that to a far greater extent than Apple. [/Update]
After Apple won an adverse inference jury instruction against Samsung for spoliation of evidence (deletion of presumably relevant emails), the Korean company brought a "me too" kind of motion asking for the same kind of instruction against Apple, which opposed it as untimely and meritless.
Apple's objection to the timeliness of the motion has succeeded. Late on Thursday, Magistrate Judge Paul S. Grewal denied Samsung's motion since it was "based on facts known to the moving party [Samsung] months and months ago in the middle of trial" but brought "outside of any rationale notion of compliance with the schedule of this case". Judge Grewal portrayed and dismissed Samsung's excuse for the extremely belated motion like this:
"The fact that a timely motion brought by the other side [Apple] yielded an instruction that could harm the moving party's [Samsung's] chances with the jury, and 'fairness' somehow demands a similar instruction as to both parties.
Except that it doesn’t. There is nothing at all unfair about denying relief to one party but not the other when the one but not the other springs into action long after any rational person would say it could have done so. [...]"
This was an enough-is-enough situation regarding schedules. The orders notes that "in so many ways this case has challenged the remarkable and the unremarkable alike", and points to the fact that the parties to this case filed papers "hours before hearings rather than the days provided by local rule", and that "[h]earings themselves are presented on shortened rather than standard time, at least six times before [Judge Grewal] alone". The final sentences of the order explains why there are overarching reasons for which the court can't grant Samsung an exception here:
"The court has bent itself into a pretzel accommodating the scheduling challenges of this case. But at some point the accommodation must end, lest the hundreds of other parties in civil rights, Social Security, and other cases also presently before the undersigned and presiding judge might reasonably ask: what makes the parties in this patent case so special? We are at that point in this case, and perhaps beyond. And so as a matter alone of this court's well-recognized discretion to hold parties to a schedule and insist upon requests that are timely, Samsung's motion is DENIED."
Samsung's hopes now rest on an appeal to Judge Lucy Koh, the judge presiding over this action of the previous decision granting Apple an adverse inference instructions. Samsung primarily brought this "me too" motion in order to argue that the point in time at which Apple had to order employees to archive emails cannot possibly have been after the day on which Samsung's duty arose. But since Judge Grewal denied the motion as untimely, he didn't even reach that question. As a result, Samsung can't argue that he applied double standards.
There isn't much time left for Judge Koh to determine the final jury instructions. Testimony will finish today (Friday). The parties will make their closing arguments early next week, and then the jury deliberations will begin, after the final instructions have been given. I guess we'll see a set of final instructions during the weekend. And that's the latest point at which Judge Koh will have to decide on Samsung's appeal of the adverse inference instruction Judge Grewal granted Apple.
The evidence that Apple has been able to show for Samsung's willful infringement is pretty damning. If Apple indeed gets an adverse inference instructions on top (which Samsung just failed to achieve), Samsung will be in bad shape.
But Samsung can't complain that the court favored Apple. In the very context of Samsung's "me too" motion, Judge Grewal showed leniency to one of Samsung's lawyers.
At the motion hearing, Samsung was represented by an attorney from Los Angeles who had forgotten to obtain an admission to practice in the Northern District of California before arguing on Samsung's behalf. Susan Estrich, a law professor who is also known as a Fox News commentator and the former campaign manager of Michael Dukakis (the Democratic Party's presidential candidate in 1988), obtained this admission the day after the court pointed out her oversight.
The court could have denied Samsung's motion on that basis. It could have sanctioned Samsung for Ms. Estrich's failure to comply with the court's loud and clear reminder to the parties' counsel that all trial counsel had to be admitted to this district and enter an appearance before presenting argument. But Judge Grewal didn't see "any nefarious intent" (by the way, I had also written before that Ms. Estrich's explanations were credible) and held that "a further sanction would serve no meaningful purpose".
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