Northern District of California Issues Adverse Inference Instruction for Inadequate Preservation


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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