Samsung's evidence destruction will be factor in upcoming trial
A federal judge on Wednesday agreed with Apple's request to inform jurors of Samsung's practice of routinely destroying documents which may have been germane to the two companies' California court case scheduled to start next week.
U.S. District Court for the Northern District of California Magistrate Judge Paul S. Grewal said jurors can draw an ?adverse inference? from Samsung?s auto-deletion of e-mail correspondence Apple sought as evidence in the dispute's pre-trial process, reports Bloomberg.
According to the cases' referral judge, Samsung's policy to auto-delete e-mails on a ?rolling basis? as a in-built function of the company's "mySingle" mail system resulted in a similar ruling against the Galaxy maker seven years ago. In the Mosaid v. Samsung case, the District of New Jersey concluded that after "Samsung?s practices resulted in the destruction of relevant emails, and that 'common sense dictates that [Samsung] was more likely to have been threatened by that evidence,' Mosaid affirmed the imposition of both an adverse inference and monetary sanctions."
The "mySingle" e-mail system is a web-client first devised in 2000 by Samsung subsidiary Samsung Data Systems and went live across the company's entire network in 2001. Court documents note "mySingle" adheres to "a general guideline [that] calls for all e-mails to be automatically
deleted after the passage of two weeks? without exception.
Samsung argues the auto-delete protocol avoids the theft of confidential data when a computer is lost or stolen and is cheaper than using a 30-day retention period. The only effective way to continually save messages is to click a "save" button in the web client every two weeks. Samsung claims the policy is in line with Korean law.
For its part, the Sourth Korean electonics giant did issue litigation hold notices to staff in 2010 before litigation began which instructed employees to ?preserve any and all such documents that may be relevant to the issues in a potential litigation between Samsung and Apple until it is fully resolved." An updated message was again sent in April of 2011 when litigation started in earnest to some 23,000 workers.
While Samsung's effort is commendable, Apple argues that the company's responsibility to save evidence began when it was presented with infringement contention claims in August of 2010. The Galaxy maker also claims it had no knowledge of Apple's impending suit.
The court agreed with Apple and notes Samsung cannot "tout its prudence and responsibility" in its effort to save e-mails while at the same time arguing "it was ignorant of the possibility of litigation pre-complaint."
More pressing an issue is the "mySingle" e-mail system implementation which possibly destroyed an untold number of documents pertinent to the case. Judge Grewal makes special mention that the few Samsung employees who used Microsoft's Outlook mail client, which isn't managed by the "mySingle" protocols, managed to turn in thousands of messages while department heads using the proprietary system handed over next to nothing.
"While the nature of the auto-delete function is such that the court will never know how much relevant material was lost, the court cannot ignore the statistical contrast depicted above," Judge Grewal writes.
As a majority of the products alleged to have infringed on Apple's design patetns were released prior to Apple's April 15, 2011 suit filing, the most relevant e-mails were likely deleted.
?Rather than building itself an off-switch — and using it — in future litigation such as this one, Samsung appears to have adopted the alternative approach of ?mend it don?t end it,? Judge Grewal wrote in his order. ?Samsung?s mend, especially during the critical seven months after a reasonable party in the same circumstances would have reasonably foreseen this suit, fell short of what it needed to do.?
Judge Grewal admits the discovery process is far from perfect but the actions, or lack thereof, taken by Samsung cannot be overlooked. He goes on to order the adverse jury instructions but leaves it up to jurors to decide whether the issue should factor into their final verdict.
From the jury instructions:
U.S. District Court for the Northern District of California Magistrate Judge Paul S. Grewal said jurors can draw an ?adverse inference? from Samsung?s auto-deletion of e-mail correspondence Apple sought as evidence in the dispute's pre-trial process, reports Bloomberg.
According to the cases' referral judge, Samsung's policy to auto-delete e-mails on a ?rolling basis? as a in-built function of the company's "mySingle" mail system resulted in a similar ruling against the Galaxy maker seven years ago. In the Mosaid v. Samsung case, the District of New Jersey concluded that after "Samsung?s practices resulted in the destruction of relevant emails, and that 'common sense dictates that [Samsung] was more likely to have been threatened by that evidence,' Mosaid affirmed the imposition of both an adverse inference and monetary sanctions."
The "mySingle" e-mail system is a web-client first devised in 2000 by Samsung subsidiary Samsung Data Systems and went live across the company's entire network in 2001. Court documents note "mySingle" adheres to "a general guideline [that] calls for all e-mails to be automatically
deleted after the passage of two weeks? without exception.
Samsung argues the auto-delete protocol avoids the theft of confidential data when a computer is lost or stolen and is cheaper than using a 30-day retention period. The only effective way to continually save messages is to click a "save" button in the web client every two weeks. Samsung claims the policy is in line with Korean law.
For its part, the Sourth Korean electonics giant did issue litigation hold notices to staff in 2010 before litigation began which instructed employees to ?preserve any and all such documents that may be relevant to the issues in a potential litigation between Samsung and Apple until it is fully resolved." An updated message was again sent in April of 2011 when litigation started in earnest to some 23,000 workers.
While Samsung's effort is commendable, Apple argues that the company's responsibility to save evidence began when it was presented with infringement contention claims in August of 2010. The Galaxy maker also claims it had no knowledge of Apple's impending suit.
The court agreed with Apple and notes Samsung cannot "tout its prudence and responsibility" in its effort to save e-mails while at the same time arguing "it was ignorant of the possibility of litigation pre-complaint."
More pressing an issue is the "mySingle" e-mail system implementation which possibly destroyed an untold number of documents pertinent to the case. Judge Grewal makes special mention that the few Samsung employees who used Microsoft's Outlook mail client, which isn't managed by the "mySingle" protocols, managed to turn in thousands of messages while department heads using the proprietary system handed over next to nothing.
"While the nature of the auto-delete function is such that the court will never know how much relevant material was lost, the court cannot ignore the statistical contrast depicted above," Judge Grewal writes.
As a majority of the products alleged to have infringed on Apple's design patetns were released prior to Apple's April 15, 2011 suit filing, the most relevant e-mails were likely deleted.
?Rather than building itself an off-switch — and using it — in future litigation such as this one, Samsung appears to have adopted the alternative approach of ?mend it don?t end it,? Judge Grewal wrote in his order. ?Samsung?s mend, especially during the critical seven months after a reasonable party in the same circumstances would have reasonably foreseen this suit, fell short of what it needed to do.?
Judge Grewal admits the discovery process is far from perfect but the actions, or lack thereof, taken by Samsung cannot be overlooked. He goes on to order the adverse jury instructions but leaves it up to jurors to decide whether the issue should factor into their final verdict.
From the jury instructions:
Apple v. Samsung is slated to begin on Monday, July 30 in San Jose, California under the oversight of Judge Lucy Koh.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.
Comments
Meanwhile ... Counting down to AAPL being 600 again after stupid Wall Street scare tactics.
Quote:
Originally Posted by AppleInsider
Samsung argues the auto-delete protocol avoids the theft of confidential data when a computer is lost or stolen and is cheaper than using a 30-day retention period. The only effective way to continually save messages is to click a "save" button in the web client every two weeks. Samsung claims the policy is in line with Korean law.
I'm sure they clicked a "save" button on any emails that support their case.
"Spoilation?"
Lawyers are such nebs.
Quote:
Originally Posted by digitalclips
I should hope so. I still wish it was Google Apple were going after rather than these proxy battles. Kill the head of the snake.
Meanwhile ... Counting down to AAPL being 600 again after stupid Wall Street scare tactics.
Careful what you wish for. Oracle thought they had a slam dunk on Google and came up with nothing in court. I doesn't matter who is right or wrong, it is what a jury decides and sometimes you get a bad jury that might view things with a bias regardless of the evidence.
Heck, I often don't even have a response back from a customer in under 2 weeks. And even if the customer responds in that time period, most of our projects are underway for months, at least. Deleting files after 2 weeks would mean that all the useful history was lost.
OTOH, if you're in the position of having stolen someone else's IP, the ability to hide evidence might justify the inconvenience, at least in Samsung's obvious opinion.
Quote:
Originally Posted by digitalclips
Meanwhile ... Counting down to AAPL being 600 again after stupid Wall Street scare tactics.
If you're suffering through a measly 5% drop you should definitely get rid of your AAPL stock.
Looks like samsung is going to be on the losing end. They deserve to get punished for the physical Design and crapwiz (as those of us who use pure android call it) of the SGS. Deserve to get punish on the crapwiz on the SGSII.
Google even told those idiots that they are copying Apple to cut it out, but no they did not listen.
While I don't agree with many of the software patents Apple has been granted, there is no doubt in my mind Crapwiz on the 1.0 to 3.0 deserve to be punish. Not only was it a cheap knock off of ios, but for making consumers suffer that piece of garbage software. They should have to pay owners of those devices $10.
Nature U.I on the samsung GSIII or as I like to call in less crappy touchwiz is okay since it tries to follow more pure android guidelines.
Yeah... I wonder how an organization can function with just two weeks of data. Three months I can understand... but I sure like having three years with offline backups of the previous 3. If you magically use email for exactly what it should be then no big deal... but it ends up being for so much more. To your example, if you put all the data into a trouble-ticket system, then the original email isn't as valuable...
I want Apple to sue Google, because that is the only way this horrible mess will get settled. Fix the non existing software problems in our system or have Apple and google duke it out until they both get tired of wasting money.
These things will always end in cross licencing deals. But Apple and Google have so much money and Apple is so dependent on Mobile revenue I can see this going longer than usual unless the system get hammered out.
Software patents need to be under their own umbrella.
and FRAND patents need to have strik regulations.
I bought several 6 figure blocks at 30 and 75, I said I was counting back to 600 simply because I am. Any more snide comments?
So is why Apple go after the bastard children? I hadn't thought of that.
But gee, isn't this a sign that it's really Apple that is doing the wrong thing? I mean come on, if Apple weren't being overly aggressive in litigation against Samsung, there would be no issue with their deleting emails after two weeks.
It's the right thing for Samsung to do - given the cost of memory is so high and they have no control over that. And you can't trust encryption or other security measures either. I would actually also blame Apple for agreeing to buy from Samsung in the first place, because it's obvious that Apple knew this is how Samsung's system worked - it was probably a selling feature they used to convince Apple to buy from them.
Quote:
Originally Posted by digitalclips
So is why Apple go after the bastard children? I hadn't thought of that.
Yep. Apple is establishing wins on the fringe before going up against the head. That way they can use those previous rulings to their advantage instead of "Oop! You lose against Google! Now everyone else has free reign to outright steal everything you've ever done!"
Quote:
Originally Posted by DESuserIGN
"Spoilation?"
Lawyers are such nebs.
Except "spoilation" is a real word and was used in the correct context and one can't say the same about your use of "nebs."
My whole post was just an homage to those who believe Apple is in the wrong - getting patents and defending said patents. Especially against Samsung, who is quite clearly doing nothing wrong.
Perhaps you don't have your sarcasm detector running?
Quote:
Originally Posted by digitalclips
I should hope so. I still wish it was Google Apple were going after rather than these proxy battles. Kill the head of the snake.
Meanwhile ... Counting down to AAPL being 600 again after stupid Wall Street scare tactics.
Google has not produced phones, what will they be sued over, Ad revenue creatively accounted down to almost nothing?
Google's wholly owned subsidiary Motorola, has changed things a little, although Microsoft can already ban them.
Samsung are the worst of the copiers and have benefitted the most.
The destruction of evidence should be punished.
Quote:
Originally Posted by mstone
Careful what you wish for. Oracle thought they had a slam dunk on Google and came up with nothing in court. I doesn't matter who is right or wrong, it is what a jury decides and sometimes you get a bad jury that might view things with a bias regardless of the evidence.
Nothing...
..yet.
The case is still ongoing.
Oracle don't want money, they want Google to respect Java's GPL license.
Quote:
Originally Posted by Techstalker
Looks like samsung is going to be on the losing end. They deserve to get punished for the physical Design and crapwiz (as those of us who use pure android call it) of the SGS. Deserve to get punish on the crapwiz on the SGSII.
Google even told those idiots that they are copying Apple to cut it out, but no they did not listen.
While I don't agree with many of the software patents Apple has been granted, there is no doubt in my mind Crapwiz on the 1.0 to 3.0 deserve to be punish. Not only was it a cheap knock off of ios, but for making consumers suffer that piece of garbage software. They should have to pay owners of those devices $10.
Nature U.I on the samsung GSIII or as I like to call in less crappy touchwiz is okay since it tries to follow more pure android guidelines.
Touchwiz is the most popular version of Android, the one more people choose, the only really successful Android implementation.
If it's "crapwiz" as you call it, it doesn't say much for android, does it?