One battle in the patent infringement war between Apple and Samsung concerns spoliation of evidence. Apple contended that Samsung’s use of an auto-delete setting in its e-mail system should give rise to an adverse inference that Samsung had destroyed documents that were unfavourable to its case: Apple Inc v Samsung Electronics Co Ltd, 2012 US Dist LEXIS 103958 (ND Cal, 25 July 2012).  

Grewal J of the northern district of California noted that Samsung’s reliance on auto-delete had proven problematic in earlier litigation (Mosaid v Samsung, 348 FSupp 2d 332 (DNJ 2004)) and was no less so in these proceedings. Samsung’s system automatically deleted an e-mail after the passage of two weeks, in order to minimise the risk of misappropriation or inadvertent disclosure of confidential business information, reduce document-retention costs and comply with Korean privacy law. Samsung received notice of Apple’s infringement claims in August 2010 and a few weeks later instructed ‘a select handful of employees’ that they had a duty to preserve relevant documents. Litigation hold notices went out more broadly to Samsung employees once the Apple claim was filed in April 2011, informing them not to destroy documents which could be relevant to the litigation, and employee meetings were held. At no time, however, did the company verify whether its employees had, in fact, disabled the auto-delete feature on their accounts. Apple argued that Samsung’s duty to preserve documents arose in August 2010, while Samsung maintained that the duty arose only as of April 2011. The court agreed with Apple: there was clearly a reasonable likelihood that litigation was on its way as of August 2010, and Samsung’s failure to police its employees’ document retention practices gave rise to the inference that damaging evidence had been destroyed. Samsung could not avoid sanctions after having taken ‘almost no steps to avoid spoliation beyond telling employees not to allow what will otherwise certainly happen.’