No Adverse Inference In Apple v. Samsung

In a surprising reversal of rulings by Magistrate Grewal, Judge Koh’s instructions to the jury will substantially reduce the chance that spoliation issues will affect the jury’s verdict. We previously commented that Magistrate Grewal had proposed an instruction that would have been quite harmful to Samsung,  perhaps more so than the Court had intended.

Instead, unless Judge Koh changes the proposed final instruction based on oral arguments today, which is unlikely, the jury will be told simply that Samsung “has failed to preserve evidence for Apple’s use in this litigaiton after [its] duty to preseve arose.  Whether this fact is important to you in raching a verdict in this case is for you to decide.”  Significantly, the jury will NOT be instructed that it may presume or infer any conclusions about the relevance or effect of the missing evidence.  A true “adverse inference” instruction tells the jury that it may do so.

Furthermore, the Court will issue a parallel instruction against Apple based on Apple’s failure to preserve.  This overturned another order by Magistrate Grewal, which denied, as untimely, Samsung’s motion for an adverse inference against Apple.  Samsung had appealed that ruling to Judge Koh, arguing that it had not missed any deadline to seek a penalty in the nature of a jury instruction. Thus, Samsung’s “me too” argument for a spoliation sanction against Apple was effective in creating a level playing field.

By issuing these benign and offsetting instructions, Judge Koh would push the spoliation accusations to the background.  This should come as a relief to Samsung.

Judge Koh will be issuing an Order soon explaining her disposition of the spoliation motions and the bases for these instructions.  Given the likelihood of appeal, and importance of jury instructions as grist for appeals, this may not end up as the last word on the spoliation accusations in this case.

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