EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, July 25, 2012

iTrial: Tria Judge Grants Apple's Motion For Adverse Inference Instruction Based On Samsung's Auto-Deletion Of E-Mails

A huge trial looms between tech giants Samsung and Apple. Apple "believes Samsung owes “substantial monetary damages” in the region of $2.5 billion for illegally copying Apple products such as the iPhone and iPad." In turn, Samsung claims that "Apple could not have become a successful participant in the mobile telecommunications industry" without the use of Samsung’s patented technology and that the iPhone maker was trying "to stifle legitimate competition and limit consumer choice to maintain its historically exorbitant profits." 

So,who will win? I don't know, but the judge's pretrial order grating Apple's motion for an adverse inference instruction based upon spoliation of evidence can't hurt the company that Steve Jobs built. So, what was the basis for the judge's ruling?

According to the order, posted by FOSS Patents, Apple claimed that Samsung failed to take 'adequate steps to avoid spoliation after it should have resonably anticipated this lawsuit and elected not to disable the 'auto-delete' function on its homegrown 'mySingle' e-mail system." So,why did the judge grant Apple's motion? Well, the easiest explanation comes from the first two paragraphs of the judge's order. The first sentence of the first paragraph begins with the observation that "Samsung's auto-delete e-mail function is no stranger to the federal courts. Then, after noting previous litigation in which Samsung's auto-delete function possibly erased e-mails relevant to trial, the judge noted that "[r]ather than building itself an off-switch -- and using it -- in future litigation such as this case, Samsung appears to have adopted the alternative approach of 'mend it don't end it.'"

More specifically, the judge found that

a party seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.

Then, when a judge find these elements satisfied, the judge should give an adverse inference instruction

insofar as such a sanction would "serve[] [the] threefold purpose of (1) deterring parties from destroying evidence; (2) placing the risk of an erroneous evaluation of the content of the destroyed evidence on the party responsible for its destruction; and (3) restoring the party harmed by the loss of evidence helpful to its case to where the party would have been in the absence of spoliation."

Based upon Samsung's failure to correct the problems connected with its auto-delete function after prior litigation, the judge easily found that the above three elements were satisfied and that an adverse inference instruction would serve the above three purposes, so it gave the following instruction:

"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."



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Even assuming that an adverse inference instruction was appropriate, there are good arguments that the proposed instruction is not fair. For example, the instruction does not speak of Samsung's ability to rebut the inference or "finding."

Posted by: Jeffrey Gross | Aug 4, 2012 6:03:16 AM

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