Originally Posted by jragosta
There are other factors that you didn't mention. In particular, Apple already had its email retention policy in place because of its lawsuits with other companies, so they were already retaining emails and documents. The only issue is that they didn't specifically tell employees to retain emails because of Samsung. But since they were already retaining emails because of Motorola, HTC, Google, etc, that's a moot point.
In addition, Apple had specifically requested documents that Samsung claims were deleted. It is therefore clear that Samsung had deleted relevant documents. The converse is not true.
Not quite true. If Apple had reason to suspect a litigation, their lawyers had a duty to issue a preservation order specific to that case that would supersede any other retention schedule or email management program. The scope of that preservation would also have to be defined in meet and confer sessions with the opposing council, as per the FRCP. It is not enough just to retain emails generally, as the scope of the preservation would also include all other forms of media, and the chance for inadvertant spoliation would exist. Responsive material would have to be identified, reviewed, preserved and produced.
In fact, the fact that they retain email can put them at more risk, as any email they were unable to produce would be at odds with their stated policy. In contrast, a policy that mandates a destruction schedule for non-record email gives you the protection to not have to produce, as long as you can prove your records management program is applied consistently.
Conversely, Samsung's failure to produce email could be defensible if their email management policy specifies a period of retention (even two-weeks). They would only be responsible for the production of material produced after they could reasonably be aware of the impending litigation, or material that would otherwise be retained as a record by their retention schedule. Now, the onus is on Samsung to prove they have a defensible records management policy that is consistently applied, and it is clear they have inconsistent implementation here, but there is nothing inherently wrong with the destruction of emails.