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Jury will hear Samsung wrongly trashed emails in patent trial

US judge says auto-delete should have been turned off

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A US court magistrate has ordered that the jury in Apple's patent case against Samsung be told that the Korean firm went on deleting emails after it was clear the lawsuit was going to happen, potentially destroying evidence.

In US law, firms are required to hold onto documents that might be relevant to litigation from the first warning shot - in this case, when Apple sent a letter to Samsung telling the firm it was infringing on fruity patents back in August 2010 - not when the lawsuit actually kicks off - in this case, in April 2011.

Samsung's email system, mySingle, automatically deletes employee missives after two weeks unless they are saved by a staff member. Although the firm advised its workers in 2010 that patent litigation was likely and they should start saving emails, it didn't follow up with staff or give any training until 2011 when the case started.

"In light of its bi-weekly automatic destruction policy, Samsung had a duty to verify whether its employees were actually complying with the detailed instructions Samsung claims it communicated to them," Judge Paul Grewal said in a court filing. "As far as the court can see, Samsung did nothing in this regard."

Even after Samsung started checking up on employees and giving them more detailed instructions, it didn't simply turn off the auto-delete on the mySingle system. The jig was up when employees using the mySingle system, called as key fact witnesses in the case, only provided a few emails or even none, while workers who used Microsoft Outlook instead produced thousands.

"Samsung kept the shredder on long after it should have known about this litigation, and simply trusted its custodial employees to save relevant evidence from it," Grewal said. "The stark difference in production from mySingle and Microsoft Outlook custodians makes clear that this plan fell woefully short of the mark."

The judge said that statistically, there was almost certainly relevant evidence in the emails deleted, so when trial starts at the end of this month, the jury will be advised that Samsung destroyed evidence that is more likely than not favourable to Apple.

Samsung said in an emailed statement to The Register that the same argument had already been rejected by the International Trade Commission, which found that the firm had taken "reasonable and appropriate steps to preserve evidence".

"We intend to appeal Judge Grewal's decision to the trial judge, and if necessary, to the Court of Appeals," the firm said. "Samsung remains committed to complying with all information requests from the court."

With the trial edging closer, Apple and Samsung both filed extensive trial briefs laying out all their arguments against each other.

Cupertino once more insisted that Samsung's royalty demands were far higher than Apple pays to others and more than the South Korean company has ever made anyone else pay.

"Samsung’s royalty demand is inconsistent with its own and other UMTS declared essential patent holders’ licensing practices," Apple said in its brief. "It has never sought or received a 2.4 per cent FRAND royalty from any licensee, and indeed cannot even explain where that number came from.

"Samsung’s 2.4 per cent royalty demand on the entire selling price of Apple’s products is exorbitant and non-FRAND on its face. Based on the average selling price of the iPhone, the royalty that Samsung demands would equal $14.40 per unit… if all holders of declared-essential patents were to take the abusive position Samsung asserts, total royalties on the iPhone would be hundreds of dollars."

But Samsung's brief rejected Apple's arguments, saying that Apple didn't even enter into negotiations for its patents.

"Apple argues that Samsung‘s proposed royalty is not fair and reasonable, but Samsung‘s opening offer to Apple is consistent with the royalty rates other companies charge for use of their standards-essential patents. Moreover, Apple never even made a counteroffer," the firm said.

"Instead, it simply rejected Samsung‘s opening offer, refused to negotiate further and to this day has not paid Samsung a dime for Apple‘s use of Samsung‘s standards-essential technology."

The two firms also made their usual arguments about whether or not Samsung's mobes and fondleslabs are copies of iDevices.

The trial is set to start on 30 July. ®

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