Northern District of California Issues Adverse Inference Instruction for Inadequate Preservation

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As the patent infringement trial between Apple and Samsung got underway in the Northern District of California, the court handed down a decision that serves as a strong reminder of the importance of litigation hold procedures and preservation practices. In-house discovery teams for corporate defendants should heed the Northern District's comments and be aware of the negative inference instruction Samsung received as a result of its preservation practices, particularly when a corporation employs an uncommon (e.g., not Microsoft Outlook) email program.

Samsung’s Preservation Efforts -

At issue in the motion was Samsung’s preservation practice for its employees using Samsung’s proprietary “mySingle” email program. Apple Inc. v. Samsung Electronics Co., LTD, Case No.: C 11-1846 LHK (PSG), Slip Op. (N.D. Cal. July 25, 2012). The program employed an auto-delete feature whereby users’ emails were deleted every two weeks. Employee users could save their emails to their local computers by either clicking a “save all” button or by saving only certain emails. Notably, the preservation procedures for those portions of the company using Microsoft Outlook were not implicated. Id. at 1 n.3. In fact, the court noted those employees who used Outlook produced many thousands of emails, while employees who used mySingle produced only a handful.

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