As noted by The Verge, the rationale and late timing of Samsung's filing is brought into question in Judge Grewal's order: "The fact that a timely motion brought by the other side yielded an instruction that could harm the moving party?s chances with the jury, and 'fairness' somehow demands a similar instruction as to both parties. Except that it doesn't."
From the order:
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. 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?
Samsung's motion, first filed in July, was in response to an Apple-won adverse inference jury instruction over the Korean company's email deletion protocols. Because Samsung's internal email system, called mySingle, routinely erases emails after two weeks, it was proposed that the company didn't follow its legal burden to preserve evidence relating to the trial.
At the time of Apple's motion, Judge Grewal said Samsung "consciously disregarded" its legal obligations, and ordered the jury be apprised of the situation.
The Korean electronics giant subsequently issued its own motion for adverse inference instruction against Apple, though the basis for such a request was unclear given the Cupertino company doesn't have a system in place which routinely destroys emails.
Apple v. Samsung is scheduled to continue on Friday with more testimony from Apple expert witnesses.