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Samsung copies Apple's claims it destroyed email evidence in "me too" filing

post #1 of 35
Thread Starter 
After Apple filed and won the right to advise the jury that Samsung failed to comply with instructions to retain relevant email evidence, Samsung has filed its own motion demanding that the jury also be told that Apple may have failed to preserve relevant emails.

In opposing the motion, Apple's attorneys twice referred to Samsung's motion as a "me too" filing, according to a report discussing the situation by FOSSPatents writer Florian Mueller.

Apple's filing further revealed that the company "negotiated with Samsung in good faith after first apprising Samsung of its infringement claims" in the summer of 2010 and sued "only after Samsung announced a new round of infringing products in Spring 2011.

"Samsung made clear to Apple that it would not stop copying Apple's products."

Samsung Phones
Apple illustration of Samsung phones pre- and post-iPhone. | Source: Apple trial brief


Apple's original motion for an adverse inference jury instruction

Apple's motion for an "adverse inference jury instruction" is based on the fact that Samsung's email system was designed to routinely destroy emails after two weeks, and that Samsung did not follow legal obligations to retain potential evidence.

The motion Apple filed took issue with "whether Samsung took adequate steps to avoid spoliation after it should have reasonably anticipated this lawsuit and elected not to disable the auto delete function of its homegrown 'mySingle' email system."

Apple also cited the fact that Samsung had previously been found, in the Mosaid v Samsung case from seven years ago, to have similarly maintained policies that "resulted in the destruction of relevant emails" in that case, resulting in "the imposition of both an inverse interference and monetary sanctions" against it.

Rather than changing its behavior, Apple outlined that Samsung took no action to preserve evidence from automatic deletion even though litigation was "reasonably foreseeable."

Magistrate Judge Paul S. Grewal responded to the motion by stating that Samsung had "consciously disregarded" its legal obligations, and ordered that the jury hearing the case be advised:

"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."


Mueller reported that "for an adverse inference jury instruction, this is relatively soft. The court could also have told the jury that it "must" presume that relevant evidence in Apple's favor was lost, or in a worst-case scenario for Samsung, that certain of Apple's claims must be deemed proven."

At the same time, the order "doesn't make Samsung look good, generally speaking," Mueller observed, adding that "this evidentiary issue is particularly relevant is the question of whether Samsung willfully infringed on Apple's intellectual property."

Samsung copies Apple's email destruction claim

Following the order granting Apple's motion, Samsung filed its own accusations that Apple too failed to preserve email evidence, which Apple contested on the grounds of being "untimely" as it was filed just two days before trial.

In his report covering Samsung's counter motion asserting similar claims, Mueller flatly said that Samsung's "motion makes no sense whatsoever."

Among the differences between the filings by Apple and Samsung are the facts firstly, Apple doesn't routinely and automatically delete its emails as a matter of policy.

"There is an enormous difference between systems like Samsung's that require individuals to 'opt in,' by taking affirmative actions to preserve [relevant messages], and systems like Apple's that require individuals to 'opt out,' by taking affirmative actions to delete," Apple stated in its brief opposing Samsung's motion.

Secondly, Apple was already involved in patent lawsuits involving Nokia, HTC and others, and therefore was already following evidence retention rules. Samsung is accused of taking no steps to preserve evidence despite knowing that litigation was reasonably foreseeable.

Thirdly, while Apple has identified some email evidence supporting its claim that Samsung willfully infringed, leaving it reasonable that there was additional supporting evidence available, Samsung's accusations are not based on any "showing of harm."

Mueller noted that Apple's filing stresses "that Samsung's motion doesn't provide any indication that relevant emails (that would have helped Samsung's case) got lost."


Instead, Samsung argued it only received 66 emails from Apple pertaining to patents during the August 2010 to April 2011 period, suggesting that there should be more evidence to comb through.

"Apple produced zero Steve Jobs e-mails from the key August 2010 to April 2011 period (and 51 e-mails overall from Jobs)," Samsung's motion argued.

"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."

Reflect, distract, simplify

Mueller writes that "Samsung's tactics make psychological and political sense. It seeks to capitalize on the fact that the court (as well as the appeals court) will want to avoid any impression of double standards."

Before filing its own motion, Samsung initially insisted that Apple's award of an adverse inference jury instruction must be reversed by the court lest it "undermine the fairness of the trial and ensure that any verdict in Apple's favor must be reversed."

After failing to get the order overturned, Samsung filed its own accusations against Apple, alleging the potential of missing email evidence, an apparent effort to water down the seriousness of its own apparently intentional efforts to allow evidence to be destroyed with the claim that both parties were essentially equally guilty.

Samsung's filing simply insists that "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."

Reductio ad absurdum

Samsung's countersuit over patent infringement employs the same tactics, creating the suggestion that both companies were equally guilty of "patent infringement," blurring black and white issues into a muddy pool where observers can see whatever they want to see.

Samsung has been particularly effective in reducing Apple's design patent infringements down to the suggestion that Apple is suing over "rectangles," a talking point often repeated to sympathetic media sources by Samsung's chief product officer Kevin Packingham.

"Consumers want rectangles and we?re fighting over whether you can deliver a product in the shape of a rectangle," Packingham insisted, adding that Samsung also has design patents of its own that are "not as simple as the rectangle."
post #2 of 35
RIM should just go ahead and sue Samsung too. Look at those "before iPhone"phones.

 

 


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post #3 of 35

Wow, it's so unlike Samsung to play the "me too" card.

post #4 of 35

From Samsung:  "It is inconceivable that Mr. Jobs, CEO of Apple during the relevant time period and inventor of the infringed patents, had so few e-mails on issues in this case and none since October 5, 2011..."

post #5 of 35
Originally Posted by jcallows View Post
From Samsung:  "It is inconceivable that Mr. Jobs, CEO of Apple during the relevant time period and inventor of the infringed patents, had so few e-mails on issues in this case and none since October 5, 2011..."

 

"We demand Mr. Jobs come forth and testify in this trial!"

Originally Posted by Marvin

The only thing more insecure than Android’s OS is its userbase.
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Originally Posted by Marvin

The only thing more insecure than Android’s OS is its userbase.
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post #6 of 35
Two weeks? What the fudge is up with that? That's one of the dumbest things a company could do. Sooner or later that's going to bite them in the ass. Especially if they are deleting emails regarding their financials and taxes.

I wouldn't trust a business that operated like that. It makes it look like they have something to hide or that they are sloppy.
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post #7 of 35

Rectangles matter.  Case in point:

 

Exhibit "A" - Volvo Exhibit "B" - Porche

700

 

700

 

post #8 of 35
Originally Posted by bigdaddyp View Post
Two weeks? What the fudge is up with that? That's one of the dumbest things a company could do. Sooner or later that's going to bite them in the ass. Especially if they are deleting emails regarding their financials and taxes.
I wouldn't trust a business that operated like that. It makes it look like they have something to hide or that they are sloppy.

 

I also thought that was illegal. I thought public companies couldn't delete or destroy anything.

Originally Posted by Marvin

The only thing more insecure than Android’s OS is its userbase.
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Originally Posted by Marvin

The only thing more insecure than Android’s OS is its userbase.
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post #9 of 35
Quote:
Originally Posted by Tallest Skil View Post

 

I also thought that was illegal. I thought public companies couldn't delete or destroy anything.

I think it was legal in Korea, but that doesn't help for a multi-national county I would think.

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post #10 of 35
Quote:
Originally Posted by Tallest Skil View Post

 

I also thought that was illegal. I thought public companies couldn't delete or destroy anything.

You only have to keep copies of the legal documents themselves, not the emails pertaining to them. Think of the emails as phone calls between employees and executives; the calls may discuss the documents, but the companies are not required to keep recordings of the phone calls for any length of time.

 

I'm sure they are maintaining any required financial records, in digital or physical form, outside of their emails.

post #11 of 35
Maybe I'm wrong but I have a hard time the jury could be so gullible to fall for the rectangles argument.

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post #12 of 35
Quote:
Originally Posted by AppleInsider View Post

Samsung's countersuit over patent infringement employs the same tactics, creating the suggestion that both companies were equally guilty of "patent infringement," blurring black and white issues into a muddy pool where observers can see whatever they want to see.

 

Classic defense attorney tactic.  They don't need to be precise.  They don't need to prove all (or any) of their points.

 

All they need to do is plant the seed of doubt in jurors' minds, whether it's due to rational or irrational argument.

And, so far, Samsung's defense attorneys seem to be leaning heavily toward the irrational.

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post #13 of 35

Sarbanes-Oxley Act, Section 802 deals with retention for public and private companies in the U.S.A.
 

post #14 of 35

World Police USA.

post #15 of 35
Originally Posted by Cloud30000 View Post
You only have to keep copies of the legal documents themselves, not the emails pertaining to them. Think of the emails as phone calls between employees and executives; the calls may discuss the documents, but the companies are not required to keep recordings of the phone calls for any length of time.

 

I'm sure they are maintaining any required financial records, in digital or physical form, outside of their emails.

 

Oh, I didn't mean for just the trial, I meant anything at any point. E-mails, letters, contracts, etc. If they got it, they HAD to keep it, I thought.

Originally Posted by Marvin

The only thing more insecure than Android’s OS is its userbase.
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Originally Posted by Marvin

The only thing more insecure than Android’s OS is its userbase.
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post #16 of 35

It may very well be legal in Korea, but here (in the United States):

 

  • Section 802 underscores the importance of record retention and destruction policies that affect all of a company’s e-mail, e-mail attachments, and documents retained on computers – e-data – as well as hard copies of all company records.

 

  • The rules state that if you know your company is under investigation, or even suspect that it might be, all document destruction and alteration must stop immediately. And, you must create a company record showing that you’ve ordered a halt to all automatic e-data destruction practices.
post #17 of 35
Originally Posted by PowerMach View Post

…all document destruction and alteration must stop immediately. And, you must create a company record showing that you’ve ordered a halt to all automatic e-data destruction practices.

 

This should't be going on at ALL!

 

😨

Originally Posted by Marvin

The only thing more insecure than Android’s OS is its userbase.
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Originally Posted by Marvin

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post #18 of 35

Does Samsung just NOT HAVE an original bone in their body? Oy...

"Picasso had a saying, 'Good artists copy, great artists steal.' And we've always been shameless about stealing great ideas."
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post #19 of 35

It just means that Apple was smart enough not to put thing in writing especially when you know there will be discovery request for any email pertaining to Samsung. Smart move on Apple part, never ever put things in writing when it can be avoided. 

 

Emails have made lawyers jobs so easy to prove their case these days. Never understood why people over document and carry on hallways conversation in email and IMs.

post #20 of 35
Quote:
Originally Posted by bigdaddyp View Post

Two weeks? What the fudge is up with that? That's one of the dumbest things a company could do. Sooner or later that's going to bite them in the ass. Especially if they are deleting emails regarding their financials and taxes.
I wouldn't trust a business that operated like that. It makes it look like they have something to hide or that they are sloppy.

 

Quote:
Originally Posted by Tallest Skil View Post

 

I also thought that was illegal. I thought public companies couldn't delete or destroy anything.

 

Not ever deleting anything would be problematic, don't you think? Should an insurance company (as as example) be required to maintain a claim file for a car accident that happend 50 years ago? Two weeks may seem aggressive, but how was it applied? Was it applied to every single email box (inbox, sent mail, deleted, etc)? A two-week retention period on my inbox would piss me off, never mind a lawyer who might be suing me. But if it's an email I sent or has been deleted by me (which only puts in in the sent mail or deleted mail folder)? Even most email clients (Apple's own Mail, for instance) will permanently delete those after a period of time.

 

Also, as others have stated, emails are seldom considered "business records" (claim files, contacts, financial records, etc). As such, you are not required to preserve them as a matter of your normal business process. They are however, subject to discovery and as such you are required to preserve them if they are related to a legal issue (or I guess from thsi article, a potential legal issue).

post #21 of 35
Originally Posted by Wiggin View Post
Not ever deleting anything would be problematic, don't you think? Should an insurance company (as as example) be required to maintain a claim file for a car accident that happend 50 years ago?

 

I see what you're saying, but I also agree with the example. Determination thereof should probably fall on what is best for that industry. For example, insurance records for an item should outlive the item itself. While the item exists, all records for all time should be kept. If the item is then destroyed, only a summary of its existence needs to be kept, along with a record of destruction.

 

And with the incredible search we now have (like in Mail itself), would it really be a big deal to keep absolutely everything in a repository somewhere that is backed up weekly? Each person wouldn't have to keep every e-mail in their own control; just for long enough until it can be backed up to the main archive.

Originally Posted by Marvin

The only thing more insecure than Android’s OS is its userbase.
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Originally Posted by Marvin

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post #22 of 35
Quote:
Originally Posted by TwoPM View Post

World Police USA.

People are always welcome to go do their business somewhere else. If you want to do business here, you have to act according to our rules.

 

Incidentally, that is no different from how laws operate in your country, which I assume is Korea.

post #23 of 35
Quote:
Originally Posted by PowerMach View Post

Sarbanes-Oxley Act, Section 802 deals with retention for public and private companies in the U.S.A.
 

It is not clear if that section of S-Ox applies to ADRs (which is how Samsung is traded in the US).

post #24 of 35

That Samsung's lawyers keep asking how much the Apple experts are paid should be inadmissible. The fact they are compensated has nothing to with their expertise. But then again, they cant win on facts, only on innuendo and obfuscation.

post #25 of 35

It just seems that Samsung keeps digging their grave here because they have nothing to counter their blatant theft of Apple's IP

post #26 of 35

Lol is there anything Samsung won't copy?

post #27 of 35
Quote:
Originally Posted by dmarcoot View Post

That Samsung's lawyers keep asking how much the Apple experts are paid should be inadmissible. The fact they are compensated has nothing to with their expertise. But then again, they cant win on facts, only on innuendo and obfuscation.

That's not true. They also have outright lies on their side. Like the attorney lying to the judge about the date a picture was taken.
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post #28 of 35

If Samsung start of quoting to the jury that rectangles are the core of Apple's issues but then the jury starts seeing all the other evidence of copying then the jury will think that Samsung are trying to purposely mislead them.

post #29 of 35

Anyone want to comment on the picture here and how obvious it is that Samsung copied the iPhone look and feel?  A picture is worth a thousand words...

post #30 of 35

What's next? Samsung announce that they are suing Samsung?

post #31 of 35
Quote:
Originally Posted by Wiggin View Post

 

Also, as others have stated, emails are seldom considered "business records" (claim files, contacts, financial records, etc). As such, you are not required to preserve them as a matter of your normal business process. They are however, subject to discovery and as such you are required to preserve them if they are related to a legal issue (or I guess from thsi article, a potential legal issue).

 

This.  Email is not a record, and not required to be maintained qua email, it is a medium, and may contain record material.  Generally though this is not the case.  Liability is one of the reasons you don't want to keep emails around forever, but really an email can just as easily save you as damn you.  The real reason for not keeping emails (or any other non-record information) permanently is the cost of discovery.  You have to sweep everything reasonably accessible than start to filter down as counsel defines the scope of the preservation (under cfr rule 26), and the bulk of that stuff is going to have to be reviewed by lawyers for relevance at a fat hourly rate.

 

What you do keep as a record is governed by both regulation and law, business need, and the amount of risk you are willing to assume.  Section 802 pertains to records related to SEC filings and other financial reporting, not to all email.  Two weeks is a short but not uncommon retention period for email in third part email management tools; I see typically 3 weeks to a month for the inbox, longer when moved into another folder, and then actual records get declared against content types governed by the company retention schedule.

 

Honestly, most large companies have legal preservation practices that are largely inadequate to their size and needs.  It is more the norm that a preservation causes sturm and drang rather than the execution of well defined processes.

post #32 of 35
Quote:
Originally Posted by Cloud30000 View Post

You only have to keep copies of the legal documents themselves, not the emails pertaining to them.

Prior to a lawsuit yes. But once that comes into play everything is to be kept

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post #33 of 35
Quote:
Originally Posted by jragosta View Post

That's not true. They also have outright lies on their side. Like the attorney lying to the judge about the date a picture was taken.

And I hope the juror is aware of such lies.

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post #34 of 35

I wish the name of the writer would appear in the title of the news.

 

I tend to read the thing, wonder why it's so ridiculously slanted, and then notice it's from DED.

 

Short description:

 

"Bad Samsung wanna use same tactics as good Apple. Samsung is wrong anyway, why even try them? Kill them all! Oh, and let's use latin to end this argument as a pro. Who cares about balance anyway?"

 

Nyuh. I hope I'm not the only one who thinks more analyses and less DED-slander would serve Ai well?

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post #35 of 35
I did some SarbOx comliancy missions in the past.
Always thought that it just related to financial disclosure and not, as you seem to suggest, to claims between companies over a patent.
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