The judge's proposed version, with much milder language than the magistrate judge's, read like this:

[Apple/Samsung Electronics Company] has failed to preserve evidence for [Samsung's/Apple’s] use in this litigation after [Apple's/Samsung Electronics Company’s] duty to preserve arose. Whether this fact is important to you in reaching a verdict in this case is for you to decide.

*Adverse Inference*

There was a lot of back and forth about email spoliation. This revolved around a few points:

First of all, when they established the date by which evidence needed preservation, it became a concern of having a double standard on when Samsung and Apple should have started preserving evidence and putting people on litigation hold. For example, they didn't put Steve Jobs on litigation hold until much later than other people. Judge Koh said something to the effect that surely the plaintiff, Apple, knows better than the defendant when litigation is about to commence. So why, then, didn't it put a litigation hold?

Apple seemed to present more evidence of spoliation on Samsung's part. Samsung however made the argument that they had similar evidence of the same on Apple's part. After arguments by Apple's lawyer, in the end, Judge Koh seemed focused particularly about why Steve Jobs wasn't on litigation hold and the company's policy of automatic notices when your email box gets full.

In the final analysis, Judge Koh said that she was going to make a similar adverse inference on both sides but offered not to do it on either. The Apple lawyer consented to that.

I don't think either of them failed in any duty, personally. I never did, and this outcome seems fair. The parties just picked a different point in time than the magistrate judge picked, but Apple insisted on pursuing an adverse inference instruction against Samsung, got it, and then that inspired Samsung to seek an equal instruction, and now it has come back to bite Apple. None of this comes as a surprise to me, since the facts were so clear in Samsung's motion asking for an equal adverse inference jury instruction against Apple, unless the one against it were dropped. Some things are just obvious. Like I say, sometimes it's better not to be as aggressive as you know how to be.

Picking the date to start preserving evidence for trial is a sticky wicket, frankly. You do the best you can, and the trigger is supposed to be when you believe litigation will occur, and here Samsung actually started preserving evidence long, long before Apple did, almost a year before Apple did, so it's only fair, really, that the judge sanction, mildly, both, if she wanted to sanction either. And why sanction either in a fact pattern like this?

That means this is another failed prediction for FOSSPatents. Actually, three of them. First Florian Mueller wrote,¹ when the magistrate issued the sanction against Samsung alone, that as a result Samsung now would have a credibility problem with the jury, which could be serious for Samsung. I corrected his misunderstanding of what was happening in this article, where you will find many more details. Mueller also called Samsung's subsequent motion for an equal adverse inference instruction "ridiculous", a motion "without merit", and one he predicted the judge would deny.² That was wildly wrong, as you can see from the result.

Today he wrote that there would be equal adverse inference instructions against both Apple and Samsung, calling it a "surprising" development, but opined that Apple "may very well" win on appeal on this point.³ He wrote too soon, probably thinking that the judge's proposed order was final, missing the detail that the judge's proposed jury instruction was subject to a conference today. You can't appeal what you agreed to, as Apple did today.

Why keep pointing out his errors, you ask? Not for fun. Because it's not fun. It is, however, part of journalistic ethics to correct misinformation that get published. It's what journalism is for, to present the most accurate account that you can. And that sometimes means you have to correct what others have written. It's also part of Groklaw's mission to do antiFUD, and we have done that from day one.

That's the other lesson. If you are not sure about something having to do with a legal case, ask a *lawyer* or someone with some training in the field. That's what I do.

Analysts don't go to law school, generally speaking, or have other related legal training or experience, and when it gets detailed and complex in a trial, they can miss the legal complexities, because legalese isn't English. It has English words, but it's a specialty language. In fact, it is the first thing they teach you when you go to paralegal school, how to figure out what the legalese is saying. And the rest you learn by experience, and if you don't have any of that, how can you be expected to predict with accuracy what will happen? Most lawyers I know don't predict outcomes anyway in jury trials. There are too many variables.

Here's the latest on the docket, just to show you what an extraordinary day it was for filings, most of which I haven't even begun to explain, but you can sum it up that the parties are arguing about what the jury can hear and see in closing statements tomorrow and what the rest of the jury instructions should say. Note that the tentative jury verdict form [PDF] is now posted, as well, though it could be altered still:

08/19/2012 - 1830 - Statement re 1824 Order Concerning Jury Instruction on Equitable Estoppel by Apple Inc.. (Selwyn, Mark) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1831 - TRIAL BRIEF Samsung's Response to Question re Jury Instruction No. 23 by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1832 - TRIAL BRIEF APPLE'S OPPOSITION TO SAMSUNG'S MOTION FOR JUDGMENT AS A MATTER OF LAW by Apple Inc.. (Jacobs, Michael) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1833 - RESPONSE (re 1820 MOTION for Judgment as a Matter of Law - CORRECTED] ) Samsung's Opposition to Motion for Judgment As A Matter of Law filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1834 - NOTICE by Apple Inc. APPLE'S REQUEST FOR DIRECTION TO JURY REGARDING USE OF INTERNET ON DEVICES IN EVIDENCE DURING DELIBERATIONS (Attachments: # 1 Exhibit 1)(Jacobs, Michael) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1835 - ORDER Re: 1834 Apple's Request for Device Use Direction. Signed by Judge Lucy H. Koh on 8/19/12. (lhklc3S, COURT STAFF) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1836 - NOTICE of Appearance by Marc J. Pernick (Pernick, Marc) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1837 - RESPONSE to re 1835 Order, 1834 Notice (Other) SAMSUNGS OPPOSITION TO APPLES REQUEST FOR DIRECTION TO JURY REGARDING USE OF INTERNET ON DEVICES IN EVIDENCE DURING DELIBERATIONS by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1838 - ORDER Regarding Tentative Final Jury Instructions (Part IV). Signed by Judge Lucy H. Koh on 8/19/2012. (lhklc2, COURT STAFF) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1839 - Transcript of Proceedings held on 08-13-12, before Judge Lucy H. Koh. Court Reporter/Transcriber Lee-Anne Shortridge, Telephone number 408-287-4580. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 11/19/2012. (las, ) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1840 - Transcript of Proceedings held on 08-14-12, before Judge Lucy H. Koh. Court Reporter/Transcriber Lee-Anne Shortridge, Telephone number 408-287-4580. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 11/19/2012. (las, ) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1841 - Transcript of Proceedings held on 08-15-12, before Judge Lucy H. Koh. Court Reporter/Transcriber Lee-Anne Shortridge, Telephone number 408-287-4580. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 11/19/2012. (las, ) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1842 - Transcript of Proceedings held on 08-16-12, before Judge Lucy H. Koh. Court Reporter/Transcriber Lee-Anne Shortridge, Telephone number 408-287-4580. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 11/19/2012. (las, ) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1843 - Transcript of Proceedings held on 08-17-12, before Judge Lucy H. Koh. Court Reporter/Transcriber Lee-Anne Shortridge, Telephone number 408-287-4580. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 11/19/2012. (las, ) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1844 - ORDER Regarding Apple's Requested Jury Instruction on Internet Access of Devices. Signed by Judge Lucy H. Koh on 8/19/2012. (lhklc2, COURT STAFF) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1845 - Statement re 1838 Order STATEMENT OF INSTRUCTIONS LIKELY TO BE SUBJECT OF APPLE'S HIGH PRIORITY OBJECTIONS by Apple Inc.. (Jacobs, Michael) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1846 - OBJECTIONS to High Priority Objections to Tentative Jury Instructions by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1847 - ORDER Regarding Lodging Excluded Exhibits. Signed by Judge Lucy H. Koh on 8/19/2012. (lhklc2, COURT STAFF) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1848 - ORDER Regarding Tentative Final Jury Instructions - Part V (Trade Dress Damages and Adverse Inference Instructions). Signed by Judge Lucy H. Koh on 8/19/12. (lhklc3S, COURT STAFF) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1849 - ORDER Regarding Tentative Final Jury Instructions (Complete Set). Signed by Judge Lucy H. Koh on 8/19/12. (lhklc3S, COURT STAFF) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1850 - NOTICE by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC Samsung's Notice of Lodging of Deposition Testimony (Attachments: # 1 Exhibit Exhibit A to Samsung's Notice of Lodging Deposition Testimony, # 2 Exhibit Exhibit B to Samsung's Notice of Lodging Deposition Testimony, # 3 Exhibit Exhibit C to Samsung's Notice of Lodging Deposition Testimony, # 4 Exhibit Exhibit D to Samsung's Notice of Lodging Deposition Testimony, # 5 Exhibit Exhibit E to Samsung's Notice of Lodging Deposition Testimony, # 6 Exhibit Exhibit F to Samsung's Notice of Lodging Deposition Testimony, # 7 Exhibit Exhibit G to Samsung's Notice of Lodging Deposition Testimony, # 8 Exhibit Exhibit H to Samsung's Notice of Lodging Deposition Testimony, # 9 Exhibit Exhibit I to Samsung's Notice of Lodging Deposition Testimony, # 10 Exhibit Exhibit J to Samsung's Notice of Lodging Deposition Testimony)(Maroulis, Victoria) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/19/2012 - 1851 - ORDER Regarding Jury Instructions. Signed by Judge Lucy H. Koh on 8/19/2012. (lhklc2, COURT STAFF) (Filed on 8/19/2012) (Entered: 08/19/2012)

08/20/2012 - 1852 - ORDER Regarding Admitted Exhibits List. Signed by Judge Lucy H. Koh on 8/19/2012. (lhklc2, COURT STAFF) (Filed on 8/20/2012) (Entered: 08/20/2012)

08/20/2012 - 1853 - TRIAL BRIEF Motion to Enforce Court Order and Correct the Admitted Exhibit List by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # 1 Declaration of Diane C. Hutnyan, # 2 Exhibit A, # 3 Exhibit B)(Maroulis, Victoria) (Filed on 8/20/2012) (Entered: 08/20/2012)

08/20/2012 - 1854 - NOTICE by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC Notice of Manual Filing Re: Exhibits C-V to the Declaration of Diane C. Hutnyan in Support of Motion to Enforce and Correct Admitted Exhibit List (Maroulis, Victoria) (Filed on 8/20/2012) (Entered: 08/20/2012)

08/20/2012 - 1856 - Filed & Entered: 08/20/2012
OBJECTIONS to re [1814] Order APPLE'S HIGH PRIORITY OBJECTIONS TO TENTATIVE FINAL JURY INSTRUCTIONS by Apple Inc.. (Jacobs, Michael) (Filed on 8/20/2012)

1857 - Filed & Entered: 08/20/2012
Statement re [1844] Order APPLE'S STATEMENT REGARDING UPDATES AND PATCHES THAT RELATE TO ATTEMPTS TO DESIGN AROUND THE PATENTS-IN-SUIT by Apple Inc.. (Jacobs, Michael) (Filed on 8/20/2012)

08/20/2012 - 1858 - Filed & Entered: 08/20/2012
RESPONSE to re [1844] Order Samsung's Response To Order Re: Apple's Request For Direction To Jury Regarding Use Of Internet On Devices In Evidence During Deliberations by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 8/20/2012)

08/20/2012 - 1859 - Filed & Entered: 08/20/2012
OBJECTIONS to Samsung's Objections To Tentative Final Jury Instructions by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 8/20/2012)

08/20/2012 - 1860 Filed & Entered: 08/20/2012
Declaration of Diane C. Hutnyan in Support of [1859] Objection, Samsung's Objections To Tentative Final Jury Instructions filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C, # (4) Exhibit D, # (5) Exhibit E)(Related document(s)[1859]) (Maroulis, Victoria) (Filed on 8/20/2012)

08/20/2012 - 1861 - Filed & Entered: 08/20/2012
Statement re [1851] Order APPLE'S STATEMENT AND RESPONSE REGARDING INFORMATION FOR DAMAGES INSTRUCTIONS by Apple Inc.. (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Exhibit C, # (4) Exhibit D, # (5) Exhibit E, # (6) Exhibit F)(Jacobs, Michael) (Filed on 8/20/2012)

08/20/2012 - 1862 - Filed & Entered: 08/20/2012
RESPONSE to re [1851] Order SAMSUNGS RESPONSE TO ORDER REGARDING INFORMATION FOR DAMAGES INSTRUCTIONS by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 8/20/2012)

08/20/2012 - 1863 - Filed & Entered:   08/20/2012
Statement re [1857] Statement, [1844] Order APPLE'S SUPPLEMENTAL STATEMENT REGARDING UPDATES AND PATCHES THAT RELATE TO ATTEMPTS TO DESIGN AROUND THE PATENTS-IN-SUIT by Apple Inc.. (Attachments: # (1) Exhibit A)(Jacobs, Michael) (Filed on 8/20/2012)

08/20/2012 - 1864 - Filed & Entered:   08/20/2012
ORDER Modifying Jury Instruction Hearing Time. Signed by Judge Lucy H. Koh on 8/20/12. (lhklc3S, COURT STAFF) (Filed on 8/20/2012)

08/20/2012 - 1865 - Filed & Entered:   08/20/2012
Motion for Miscellaneous Relief Docket Text: MOTION Instructing Samsung in advance of closing arguments that it may not argue based on excluded evidence or cross other boundaries in violation of pre-trial or trial rulings filed by Apple Inc.. Motion Hearing set for 8/21/2012 09:00 AM in Courtroom 1, 5th Floor, San Jose before Hon. Lucy H. Koh. Responses due by 9/4/2012. Replies due by 9/11/2012. (Jacobs, Michael) (Filed on 8/20/2012)

08/20/2012 - 1866 - Filed & Entered:   08/20/2012
Brief re [1853] Trial Brief, Apples Opposition To Samsungs Motion To Enforce Court Order & To Correct Admitted Exhibit List filed byApple Inc.. (Related document(s)[1853]) (Jacobs, Michael) (Filed on 8/20/2012)

08/20/2012 - 1867 - Filed & Entered:   08/20/2012
TRIAL BRIEF SAMSUNGS SUPPLEMENTAL STATEMENT REGARDING USE OF INTERNET ON DEVICES IN EVIDENCE DURING DELIBERATIONS by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 8/20/2012)

08/20/2012 - 1868 - Filed & Entered:   08/20/2012
ORDER Further Modifying Jury Instruction Hearing Time. Signed by Judge Lucy H. Koh on 8/20/12. (lhklc3S, COURT STAFF) (Filed on 8/20/2012)

08/20/2012 - 1869 - Filed & Entered:   08/20/2012
Exhibit List Corrected Joint Submission of Admitted Trial Exhibits by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC.. (Maroulis, Victoria) (Filed on 8/20/2012)

08/20/2012 - 1870 - Filed & Entered:   08/20/2012
ORDER Re: Tentative Verdict Form. Signed by Judge Lucy H. Koh on 8/20/12. (lhklc3S, COURT STAFF) (Filed on 8/20/2012)

08/20/2012 - 1871 - Filed & Entered:   08/20/2012
OBJECTIONS to Apples Objections To Samsungs Closing Demonstratives by Apple Inc.. (Jacobs, Michael) (Filed on 8/20/2012)

08/20/2012 - 1872 - Filed & Entered:   08/20/2012
OBJECTIONS to Samsung's Objections to Apple's Opening Slides by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: # (1) Exhibit A)(Maroulis, Victoria) (Filed on 8/20/2012)

08/20/2012 - 1873 - Filed & Entered:   08/20/2012
Statement Samsung's Proffer of Indefiniteness Argument During Closing by Samsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 8/20/2012)

08/20/2012 - 1874 - Filed & Entered:   08/20/2012
OBJECTIONS to Samsung's Responses Regarding Apple's Objections to Samsung's Opening Slides by Samsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 8/20/2012)

08/20/2012 - 1875 - Filed & Entered:   08/20/2012
RESPONSE to APPLE'S RESPONSES TO SAMSUNG'S OBJECTIONS TO CLOSING DEMONSTRATIVES by Apple Inc.. (Jacobs, Michael) (Filed on 8/20/2012)

08/20/2012 - 1876 - Filed & Entered:   08/20/2012
RESPONSE (re [1865] MOTION Instructing Samsung in advance of closing arguments that it may not argue based on excluded evidence or cross other boundaries in violation of pre-trial or trial rulings ) Samsung's Opposition to Apple's Motion Regarding Samsung's Closing Argument filed bySamsung Electronics America, Inc.(a New York corporation), Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Maroulis, Victoria) (Filed on 8/20/2012)

____________
¹ http://www.fosspatents.com/2012/07/samsung-faces-credibility-problem-with.html

¹ http://www.fosspatents.com/2012/07/samsung-files-me-too-motion-adverse.html

³ http://www.fosspatents.com/2012/08/samsung-successfully-neutralizes.html