July 25 (Bloomberg) -- Apple Inc. persuaded a federal judge to let jurors hear about document destruction by Samsung Electronics Co. in a patent trial scheduled to begin July 30 in San Jose, California.
U.S. Magistrate Judge Paul S. Grewal in San Jose today agreed with Apple that jurors should be told they can draw an "adverse inference" from Samsung's failure to avoid auto- deleting e-mail Apple later sought as evidence. The "rolling basis" Samsung used for deletions resulted in a similar ruling against the company seven years ago, he said.
"Rather than building itself an off-switch -- and using it -- in future litigation such as this one, Samsung appears to have adopted the alternative approach of 'mend it don't end it," Grewal wrote. "Samsung's mend, especially during the critical seven months after a reasonable party in the same circumstances would have reasonably foreseen this suit, fell short of what it needed to do."
Apple, based in Cupertino, California, and Suwon, South Korea-based Samsung, the world's two biggest makers of high-end mobile phones, accuse each other of copying designs and technology for mobile devices. The companies are fighting patent battles on four continents to retain their dominance in the $219 billion global smartphone market.
Grewal's proposed instructions for the jury begin by saying, "Samsung has failed to prevent the destruction of relevant evidence for Apple's use in this litigation." It adds that Apple has proved that "the lost evidence was favorable to Apple."
The instructions concluded by saying that jurors must determine for themselves whether to make the evidence destruction a factor in their verdict.
"You may choose to find it determinative, somewhat determinative, or not at all determinative in reaching your verdict," according to the instructions.
The case is Apple Inc. v. Samsung Electronics Co. Ltd., 11- cv-1846, U.S. District Court, Northern District of California (San Jose).
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