Forensic Update

Reflections on information management within the legal and regulatory arena

Archive for July, 2012

The Poisoned Well: Dreaded Pre-Trial “adverse inference” Jury Instruction in Apple v. Samsung

Posted by Johnny Lee on July 26, 2012

U.S. Magistrate Judge Paul S. Grewal granted plaintiff’s motion to issue a critical jury instruction related to the trial between tech giants Apple and Samsung…before the trial is even underway.  This ruling allows the jury to draw whatever inferences it wishes about the “lost evidence,” with Judge Grewal stating that the lost evidence was not only favorable to the plaintiff (Apple) but that the jury “…may choose to find it determinative, somewhat determinative, or not at all determinative in reaching your verdict.”

This ruling puts the defense team (Samsung) even more on the defensive in a suit meant to settle a host of substantial Intellectual Property and device design disputes.  Judge Grewal grounded his jury instruction upon the evidence submitted that the defendant had failed to avoid the auto-deletion of key email evidence.

Judge Grewal summarized the defendant’s lapse as a failure to recognize when its evidence-preservation duties arose (in Judge Grewal’s words, “especially during the critical seven months after a reasonable party in the same circumstances would have reasonably foreseen this suit”).  Simply put, the defendant “fell short of what it needed to do.”

This will be a much-watched case, and having the well “poisoned” so early in the case may have a profound effect upon the outcome.  Undoubtedly, this case will  be discussed a great deal in the eDiscovery literature as yet another object lesson on the importance of evidence preservation, including the related corollaries of records retention, data governance, and litigation holds.

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