[Updated 23th Aug: Big oops. Two judges were involved in this issue so all analysis down here were invalid. Chances of the two judges colluded to engineer the situation I discussed. A BIG SOLID ZERO. At the minimum they have better thing to do. Nevertheless, would had been nice if either one of the judge had. ]
The storm I am referring to is to ask the Jury to do an adverse inference on Samsung’s failure to preserve evidence.
Groklaw’s latest write up gives you a favour of what is involved. In my opinion, the Judge executed a skillful maneuver to throw the issue of the start date for preserving evidence on both sides into the long grass permanently.
Here is how I see it. Two possible start points. The one I favour is the judge thinks that both sides should had preserved evidence earlier than both sides had. Thus, she has no choice but to deal with this issue head on. She had to or the losing party will appeal it. The way both sides behaved means she will have a drawn out fight on her hand if she is not careful. The normal way of sanctioning both sides simultaneously will led to one motion after another asking her to reconsider her decision. Not to mention both sets of lawyers will take every opportunity to ask her to change her mind. That is at best a distraction, at worse affecting the trial. She need a better way if the opportunity presents itself.
The other starting point is she was presented with Apple’s motion for adverse inference against Samsung. After saw the bitter fighting between the two sides and seeks to deal with the issue in the least fuss way possible and to deal with the issue once and for all. Afteer all, If they were chefs tasked with frying an egg and boiling another, these two sets of lawyers will argue over which egg to fry and which one to boil. Regardless of whether she grant or reject it God knows how many times and how many times both sides will revisit this subject.
Either way the aim of the exercise is to ensure that the issue of evidence preservation will not become an issue either side can appeal on.
The opportunity presented came when one realized Apple ask for an adverse ruling on Samsung but Samsung did not. This is her chance.
I believe she knows that it is ruling she will be reversing. The risk here is she can be accused of double standard for sanctioning Samsung but not Apple who arguably is the worse offender. However, because Samsung did not ask for such a sanction, procedurally and technically, she did not have a choice. She know Samsung will ask her to reconsider and will ask for Apple to be sanctioned as well. That is when she will pounce and show the two sides what she is made of. That is a brilliant chess move.
She engineered a situation where she holds two cards, one she is going to play and the other is the card she will use to get Apple to fold. During jury instruction conference, she play the first card by declaring, that she is going to instruct jury that adverse inference will be made to both Samsung and Apple, but offer to drop the instruction altogether if both side agrees. The triumph card is, as reported by Groklaw reporter bruno, to tell Apple that as plaintiff, they would know better than the defendant when they need to preserve evidence. That is a hint to Apple that they would be worse off if they pick the fight instead of folding. The judge was anticipating Apple’s lawyers manuvering to keep the status quo, demonstrated by her cornering Apple on their failure to preserve evidence from Steve Job’s the same time as others.
It is a storm in the teacup as I cannot see how the actual date to start preserving data really matter in this case. Otherwise, we would had seen more fireworks on the topic. It just seems like one lawyer trying to make life more difficult for the other by kicking up dust at every available opportunity. In this trials, it does not seems to be limited to only one side.
Both Apple and Samsung expected this outcome.
Samsung’s Lawyer: Surprised by the original ruling. followed by a lot of work to pull things back to norm. Panic? No. Uncertainty? Yes. Prepared to appeal and expect appeal to be granted? Yes.
Apple’s Lawyer: Surprised that original ruling was successful. But soon after that, reality sank in and realized the ruling will be reversed. Luckily they are American, if they were Asian, they would had taken the fact that the judge insist they withdrawn their complain as a condition of not putting the “Adverse Inference” on them as slap on them. But because they are not Asian and American, they won’t take the Judge’s hint when she said that they as plaintiff should know better on when to preserve their records, to back down and necessitate a discussion about Steve Job’s emails.
Judge: Executed what we Asian regard as the highest form of tatic, i.e., successfully get others to go where you want and even if they felt being coerce into doing it, they cannot blame you since from the view point of a third party, they either went in on their own accord or had fallen into their own trap (and deserving so).
The rest of us: Digital age equivalent of “My dog ate my homework”, i.e., “The system automatically deleted my emails”, does not fly in the courtroom.