SAN JOSE, Calif. (CN) - In a trial that increasingly bears comparison to a vicious roller derby match, Samsung's lawyers griped that Apple's discovery double standards warrant an adverse jury instruction.
A federal magistrate judge called for Samsung to face the same punishment months ago.
Samsung attorney Charles Verhoeven told U.S. District Judge Lucy Koh in a brief filed Tuesday that Apple's responsibility to preserve internal emails began when the company first suspected that Samsung had "slavishly copied" the iPhone, in August 2010. Samsung was required to produce emails from that date, while Apple has only produced documents from April 2011, said Verhoeven, a lawyer with Quinn Emanuel in San Francisco.
"Apple argues it was entitled to rely on the 'longstanding business relationship between the parties' to assume there would be no lawsuit, but Samsung was not," Verhoeven said. "Yet Apple knew that it considered products Samsung had already released as of August 2010 to be infringing; Apple admits this."
"Apple's position that Samsung was on notice of the claims Apple ultimately decided to bring eight months before Apple was, despite Apple's admitted belief that Samsung had already infringed Apple's design patents, is unprecedented, unsupported, and directly contrary to [federal court rulings]," the Samsung attorney added.
As summarized by Samsung, Apple claims that its failure to preserve caused no prejudice because it had no automatic delete policy in place.
But Samsung also points out that Apple employees were automatically reminded to delete emails to keep accounts below certain limits - and did not turn off the automatic reminder until April 2011.
"Apple did not 'turn off' its automatic deletion encouragement system until at least April 2011," Verhoeven said. "No case has ever held that it is perfectly okay to destroy relevant documents despite an obligation to preserve so long as the destruction is 'opt in' versus 'opt out'; plainly that is not the law."
Samsung also rejects Apple's second defense: that Samsung's release of more infringing product in early 2011 initiated the need for a lawsuit.
Eight of the Samsung cellphones that Apple has accused were released between July 2010 and April 2011, according to the brief. Samsung says its first alleged incident of infringement triggered Apple's duty to preserve.
"Apple's complete failure to take steps to preserve evidence relevant to this case during a lengthy period when it had an obligation to do so reflects conscious disregard of its obligations," Verhoeven wrote. "Apple does not even attempt to defend its admitted failure to take any preservation steps until after the Complaint was filed. Apple's state of mind argument begins and ends with its post-Complaint
Samsung also questioned Apple's litigation-hold procedures for its highest executives - including the late Steve Jobs and vice presidents Jonathan Ive and Scott Forstall.
"Even as to these three witnesses Apple cannot make a case, for the numbers belie Apple's claim that alternative preservation means adequately replaced an actual litigation hold," the brief states. "Apple produced zero Steve Jobs emails from the key August 2010 to April 2011 period (and 51 emails overall), and nine emails from Mr. Ive (45 overall) from that period." (Parentheses in original.)
"These are absolutely critical witnesses-it is inconceivable that Mr. Jobs, CEO of Apple during a portion of the relevant time period and inventor of the [accused] patents, actually had so few emails on issues in this case and none between August 2010 and April 2011," Verhoeven added. "Apple's purportedly 'rigorous, thorough and state of the art' preservation efforts were no substitute for the simple remedy of a litigation hold notice, and insufficient in light of its ongoing, automatic encouragement of its witnesses to destroy their emails."
Apple argued the same points against Samsung months ago, according to the brief. Judge Koh accepted a magistrate judge's sanction
recommendation against the South Korean company last week.
Verhoeven concluded: "The facts here warrant an adverse inference instruction as to Apple, and Samsung respectfully requests that the court grant adverse inference jury instructions against Apple that mirror any that it gives against Samsung. Samsung further requests that the Court instruct the jury that it should presume that it was more reasonable for Apple to foresee this litigation than it was for Samsung to do so."
The spectacle resumes Friday.