Samsung may have been treated unfairly when the trial’s magistrate Judge refused to admit new evidence into the case late in the game despite the fact it had allowed Apple to order an earlier sanction against it, a prominent law blog is reporting.
A post in Groklaw.net says Samsung may build a case around the issue of unfairness in an attempt to throw out the verdict if the jury goes against it.
Samsung’s case may have suffered because it could not introduce late testimony from new witnesses due to a harsh review by the court magistrate. Court magistrates are judges that expedite cases in U.S. Federal Courts and help the main trial judge with administrative duties such as processing motions.
The issue in question stems from an Apple attempt early in the trial to get the court to sanction Samsung from not properly saving emails related to the case. If Samsung willingly avoided saving some emails from Samsung executives so they couldn’t be used during the trial because they may have contained information damaging to Samsung, then Samsung would be in trouble. This expectation of document saving stems from basic legal procedures applied to most U.S. companies. If it appears likely your company might be sued for a specific issue and your company’s counsel knows about it, then it is the responsibly of the company and its counsel to track copies of related communication.
While the sanction against Samsung was later dropped by Judge Lucy Koh, leaving both of the counsel teams without a sanction for this specific issue, the process left Samsung without any time to add key evidence to refute evidence.
Apple’s closing statement went out of its way to mention Samsung’s inability to produce expert witnesses to refute key infringement elements. For example, Apple brought in famed Apple design executive Susan Kare to discuss patent D‘305 (the one about the iPhone UI) on the question of “Design Patent Infringement and Validity,” while Samsung didn’t bring in anybody. Apple said it was obvious why Samsung hadn’t done that: it was afraid of revealing its Apple-copying strategy. But maybe they didn’t have time. In any case, it seems Samsung lawyers were not able to push through their requests to the judge with the same success as Apple.
Groklaw says the magistrate’s language on the order shows it’s too harsh toward Samsung. Here’s what the magistrate said: “There is nothing at all unfair about denying relief to one party but not the other when the one but not the other springs into action long after any rational person would say it could have done so. The court has bent itself into a pretzel accommodating the scheduling challenges of this case.”
This is where Groklaw says the unfairness shows up. While Samsung was reprimanded for not archiving important emails, Apple was never sanctioned for not keeping the same type of records. And the magistrate allowed the initial sanction based on timing alone. Groklaw:
In the magistrate’s order, he wrote that because Apple had filed a motion for the sanction, he was issuing the order against only Samsung as requested, but that Samsung had always been free to ask for a similar sanction against Apple, at the appropriate time.
When Samsung then filed for an equal adverse inference instruction against Apple the very next day, as the magistrate seemed to have indicated would be acceptable, yet he ruled that Apple should not be sanctioned because Samsung was filing its request too late.
One day later.
Imagine if that had held. The jury would have been told that Samsung had failed to preserve evidence, meaning they could assume, if they wanted, that evidence against Samsung was involved, but they never would have heard that Apple had behaved equally culpably, as Judge Koh said, or maybe even worse. Considering that the jury is trying to decide if either party has behaved willfully, would that have been fair?”
If Samsung loses this case, expect its attorneys to look at this issue to save its hide.
But the strategy may not work. It would mean that Samsung would have to actually produce those valuable witnesses it never had time to use in the first place.