“Two days after Apple won an adverse inference jury instruction concerning Samsung’s spoliation of evidence (deleted emails), Samsung brought a motion asking for the same type of sanction against Apple, referring to a statement in Magistrate Judge Grewal’s order that Samsung had been free all along to allege that Apple also failed to take the necessary measures to safeguard relevant emails,” Florian Mueller reports for FOSS Patents.
“The fight over adverse inference jury instructions is very important,” Mueller explains. “Based on the status quo, the jury would be told that Samsung was found to have spoliated evidence, and even though the jury would be free to draw its conclusions, Samsung would face a steep challenge especially in connection with the question of willful infringement.”
Mueller writes, “After Samsung brought its own motion for the same kind of sanction against Apple, it has increasingly been relying on an equal treatment kind of argument: the court should either grant adverse inference instructions against both parties, or against neither party. When I saw Samsung’s motion for an adverse inference jury instruction against Apple, I called it, in the headline as well as the body of my blog post, a ‘me too’ motion. In today’s filing, Apple’s lawyers used the same term (twice). No, they didn’t have to be inspired by me to come up with this term: it was the most obvious choice.”