Apple didn't preserve e-mail evidence any better than us so they deserve to be penalized in the same way we were, Samsung lawyers told a federal court today.
In Apple v. Samsung (see CNET's full coverage here), the patent court case that's commanding the attention of the gadget world, Samsung wrote to U.S. District Judge Lucy Koh and pointed out how few were the e-mails that key Apple managers, including co-founder Steve Jobs, turned over for discovery in the case. One interesting side issue is the differences between Apple's and Samsung's e-mail retention policy (we'll get to that in a second).
Samsung lawyers allege that Apple failed to meet its obligation of preserving relevant documents and that this has harmed Samsung's case.
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"Without question, documents that Apple destroyed contained product comparisons and admissions that should have been preserved and produced for Samsung's use in this case," Samsung told Koh in its filing.
Up to now, Samsung has been the party most often accused of litigation misconduct in the case. Two weeks ago, a magistrate judge found that Samsung had "consciously disregarded" a requirement to preserve evidence by leaving an automatic e-mail deletion system operating when the company should have been saving and collecting relevant e-mails. As a result, the magistrate judge granted Apple's motion for "adverse inference" and ordered that the jury be informed that Samsung destroyed evidence favorable to Apple.
That was the fourth time in the case that Samsung had suffered some kind of penalty. Now Samsung wants the jury to be instructed that Apple destroyed evidence favorable to Samsung.
The case began last year when Apple filed a patent suit and accused Samsung of building phones and computer tablets that ripped off the "look and feel" of the iPhone and iPad. Samsung responded by suing Apple for violating some of its patents. The trial finally started last week and the tactics being used are getting closer to the courtroom equivalent of hair pulling and eye gouging.
Last week, Samsung's lawyers released to the media information that the judge had declined to allow into evidence, and many observers said this was a backdoor attempt to get the information in front of the jury.
In response to Samsung's accusations about destroying evidence, Apple trumpeted the fact that unlike Samsung, it does not implement any automatic e-mail deletion systems. Employees are allowed to preserve e-mails any way they wish and when it becomes clear that Apple may be party to a lawsuit, managers send out notices to those involved to preserve e-mails. Apple does, however, employ an e-mail system that reminds employees to keep their e-mail accounts below certain limits.
Samsung told the judge that regardless of what kind of e-mail system one employs, the duty to preserve is the same.
"The question for the Court is not whether records were destroyed pursuant to an 'automatic e-mail deletion system,'" Samsung wrote. "It is whether they were destroyed when there was an obligation to preserve them, period."
Samsung argues that the court has held it responsible for preserving e-mails a full 8 months before Apple acknowledges it issued its first litigation hold on e-mails related to the case. Apple began preserving e-mails only after it filed the lawsuit against Samsung in April 2011.
"Why was August 2010 the right date triggering Samsung's obligation to preserve documents while the right date for Apple was not until April 2011?" Samsung asks in its filing.
Apple said in a response to Samsung that it's doubtful important e-mails were destroyed, because many of the managers involved already had holds on their e-mail as a result of other legal cases.
Samsung argues that the court shouldn't buy this. The maker of the Galaxy mobile products wrote to Koh that it received only 66 e-mails from Apple for the period between August 2010 and April 2011.
"Apple produced zero Steve Jobs e-mails from the key August 2010 to April 2011 period (and 51 e-mails overall from Jobs)," Samsung said in the documents. "The company received 9 e-mails from Mr. [Jonathan] Ive (45 overall) from that period. These are absolutely critical witnesses -- it is inconceivable that Mr. Jobs, CEO of Apple during a portion of the relevant time period and inventor of the '949, '678, D'087, D'677, D'270, D'889, D'757 and D'678 patents, actually had so few e-mails on issues in this case and none between August 2010 and April 2011."