Samsung in its on-going patents dispute trial against Apple Inc.(NASDAQ:AAPL) has filed a motion, copying Apple, to advise the jury that the iPhone maker may have deleted emails that may have been critical evidence in the trial.
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This move by the Korean handset maker comes a couple of days after Apple submitted a successful motion to advise the jury that Samsung may not have complied with instructions to retain critical email evidence.
Apple has, of course, opposed Samsung's motion saying that it was a `me too' filing, according to the blog Foss Patents.
Apple, in its filing opposing Samsung's motion has said that it had first notified the Korean company in 2010 of its infringements and then proceeded with its decision to sue the company only after it persisted in launching products that revealed that the company was still copying Apple's products.
"Samsung made clear to Apple that it would not stop copying Apple's products," the filing said.
Apple's original motion for an "adverse inference jury instruction" is due to the fact that Samsung follows a system of routinely destroying emails after a couple of weeks and it did not follow legal instructions to retain them as evidence.
Magistrate Judge Paul S. Grewal who was hearing the motion made the following statement to the jury:
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"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 favourable 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."