Just days before trial, The Honorable Paul S. Grewel granted in part Apple’s Motion for Adverse Inference Jury Instruction against defendant Samsung.  According to the Order filed on Wednesday, July 25, 2012, “At issue is whether Samsung took adequate steps to avoid spoliation after it should have reasonably anticipated this lawsuit and elected not to disable the ‘auto-delete’ function of its homegrown ‘mySingle’ email system.”  The court determined the answer to be “no.”  As a result, the court will instruct the jury that it may presume that the lost evidence was relevant to the issues in the case and favorable to Apple.

This is not the first time that Samsung has faced sanctions for its failure to suspend it’s two-week email deletion policy for purposes of legal hold.  In 2004 the company was sanctioned in the form of monetary fines and an adverse inference instruction in the District of New Jersey.   And, although not relied on by the current court, the Korean Trade Commission imposed a $400 million fine on Samsung for spoliation and obstruction of an investigation.

Although Samsung did send a legal hold notice prior to litigation, and once again after litigation was filed with clear instructions and follow-up reminders, the court determined that Samsung “’consciously disregarded’ its obligation to preserve relevant evidence.”  The court bases this conclusion on the fact that Samsung continues (to this day) to follow its two-week email retention policy and has not monitored employee compliance with its legal hold obligations and directives.

Is this proof that you should not rely on individual employees to follow preservation instructions, or simply one bad set of circumstances and actions?

eDiscovery Journal Contributor – Mikki Tomlinson (mikki@eDJGroupInc.com)