A Battle of the Giants: Apple v. Samsung.

(written for PIPSELF Blog)

As our lives have turned more and more digital and print-out copies of magazines such as Newsweek are almost obsolete,[1] patenting technology has become more of a priority.   Two electronic giants, Apple, Inc. and Samsung, have currently been engaged in intense intellectual property battles across Europe, Asia and the United States that often lead to vastly different court rulings depending on the jurisdiction.   While mostly suing over patent infringements involving design of their products, these epic battles raise a myriad of other legal issues and concerns.   One of the recent issues was spoliation of documents before commencement of an action.  More specifically, it dealt with a competitor’s obligation to preserve evidence relevant to the action.[2]

In a recent ruling, Lucy Koh, a district court judge, held that Samsung had a duty to preserve evidence relevant to litigation which had arisen before the actual suit formally commenced.[3]     The Court stated that Samsung’s duty was triggered when Apple, Inc. officers had given a presentation to Samsung illustrating its alleged infringement.[4] 

Federal Civil Procedure Rule 34 (“FRCP”) legally controls this issue.[5]   FRCP 34 and its counterparts permit a party to request other parties to produce documents, electronically stored information, and tangible items in their possession and control.[6]   Courts have had ample opportunity to interpret this rule.   Zubulake v. UBS Warburg LLC is a great illustration on the range of accessibility of electronic data as well as a party’s obligation to preserve this evidence.[7]  In Zubulake, the Court stated that “[t]he obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.”[8]

Preservation of electronic data is of paramount importance since withholding vital electronic data may lead to adverse court rulings and increase in the cost of litigation.[9]   In Qualcomm, plaintiff Qualcomm withheld a large number of emails that were highly relevant to the major issue of the case. [10]  Qualcomm’s misconduct in hiding the emails and electronic documents prevented Broadcom from correcting the false statements and countering the misleading arguments.[11]   It is highly unlikely that the case would have proceeded to trial, if those emails had been turned over to the defendant.[12]  

As the legal saga between two electronic giants continues in the arena of patent infringement, courts have to resolve other issues that arise in these lawsuits, establishing new precedent in the area of civil procedure and interpretation of Federal Rules of Civil Procedure.    The instant case emphasizes a party’s duty to preserve evidence before commencement of the actual litigation but right after a notice to sue by an adversary was given.   Thus, in the future, other companies should retain all relevant emails to fully comply with discovery demands under FRPC 34[13] once they receive a notice about a potential litigation.

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[1] Christine Haughney, At Newsweek, Ending Print and a Blend of Two Styles, N.Y. Times (Oct. 18, 2012),

 http://mediadecoder.blogs.nytimes.com/2012/10/18/newsweek-will-cease-print-publication-at-end-of-year/.

[2] Apple Inc. v. Samsung Elecs Co., 11-CV-01846-LHK, 2012 WL 3627731 (N.D. Cal. Aug. 21, 2012).

[3] Id. *4.

[4] Id. *2.

[5] Fed. R. Civ. P. 34.

[6] Id.

[7] 220 F.R.D. 212, 216 (S.D.N.Y.2003). 

[8] Id.

[9] See Qualcomm Inc. v. Broadcom Corp., 05CV1958-B (BLM), 2008 WL 66932 (S.D. Cal. Jan. 7, 2008) vacated in part, 05CV1958-RMB (BLM), 2008 WL 638108 (S.D. Cal. Mar. 5, 2008).

[10] Id. at *5.

[11] Id. at *6.

[12] Id. at *5.

[13] Fed. R. Civ. P. 34.