Some Pointed E-Discovery Lessons from a Battle of Giants

Before trial in the litigation between Samsung and Apple, the court focused on the e-discovery efforts of the parties. Apple alleged that Samsung failed to preserve documents, as it had done in prior litigation, and asked for an adverse inference sanction. Samsung alleged that Apple had failed to meet the preservation obligations to which it was holding Samsung.

The court held that the duty to preserve was triggered when Apple made a presentation to Samsung about Samsung’s possible infringement. While Samsung argued that it could not have known litigation would commence then, the court noted that the standard is not whether a party in fact reasonably foresaw litigation, but whether a reasonable party would reasonably foresee it.

Apple v. Samsung also demonstrated that if a plaintiff asserts a trigger date, the plaintiff itself should make sure it was in compliance by that date. When Apple asserted that litigation was foreseeable to Samsung as of the date of the presentation, it was not able to persuasively argue that its own duty to preserve did not arise until litigation was filed.

The court determined that despite issuing a litigation hold, both parties failed to properly implement it. It found that by failing to end policies that had previously thwarted the failure to preserve, Samsung acted in conscious disregard of its obligations and imposed an adverse inference. The authors provide a “roadmap” for document preservation based on examples from the case.