John Paczkowski

Recent Posts by John Paczkowski

Jury to Hear That Samsung Failed to Preserve Evidence in Apple Patent Suit

A tough break for Samsung ahead of the company’s big patent trial with Apple next week. The jury hearing the case will be told that Samsung failed to preserve evidence that may have been helpful to Apple.

Early this morning, Magistrate Judge Paul S. Grewal granted Apple’s request for an Adverse Inference Jury Instruction, handing down an order that will see the judge presiding over the case inform jurors that Samsung did not comply with its obligation to preserve relevant evidence, and may have even destroyed what would have been favorable to Apple. Specifically at issue here is Samsung’s failure to provide notes and emails from a March 5, 2011, strategy meeting held to discuss possible alterations to the Galaxy Tab 10.1 that might make it more competitive with the iPad 2.

Here’s the jury instruction, courtesy of Florian Mueller at FOSS Patents:

Samsung has failed to prevent the destruction of relevant evidence for Apple’s use in this litigation. This is known as the ‘spoliation of evidence.’

I instruct you, as a matter of law, that Samsung failed to preserve evidence after its duty to preserve arose. This failure resulted from its failure to perform its discovery obligations.

You also may presume that Apple has met its burden of proving the following two elements by a preponderance of the evidence: first, that relevant evidence was destroyed after the duty to preserve arose. Evidence is relevant if it would have clarified a fact at issue in the trial and otherwise would naturally have been introduced into evidence; and second, the lost evidence was favorable to Apple.

Whether this finding is important to you in reaching a verdict in this case is for you to decide. You may choose to find it determinative, somewhat determinative, or not at all determinative in reaching your verdict.

As Mueller notes, this isn’t the harshest of adverse inference instructions. The judge could have ordered the jury to presume certain of Apple’s claims proven because relevant evidence in its favor was destroyed. But he didn’t. So, to some extent, Samsung — which argues that the meeting was a harmless rival-product benchmarking session — is getting off easy here. That said, any adverse inference instruction prior to the start of a big case like this casts Samsung in a bad light before the jury, making the company appear potentially untrustworthy. This is certainly not the way you want to kick off an important trial.

Samsung is not off to a great start here.

UPDATE: Here’s Samsung’s statement on the instruction:
Exactly the same arguments of spoliation were rejected in May by Administrative Law Judge Pender at the International Trade Commission. He concluded that Samsung took “reasonable and appropriate steps to preserve evidence” and that Samsung’s document retention policy complied with federal law. We intend to appeal Judge Grewal’s decision to the trial judge, and if necessary, to the Court of Appeals. Samsung remains committed to complying with all information requests from the court.

(Image courtesy of

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