In a current lawsuit between Apple and Samsung, the court learned that Samsung failed to turn off its email auto delete function when the lawsuit started. Emails continued to be automatically deleted and, of course, could not be produced in response to discovery requests. The court found that failing to turn off the auto delete function was a failure on Samsung’s part to satisfy its obligation to preserve evidence – something the court takes very seriously. Apple asked the court for an “adverse jury instruction,” and the court agreed. The jury will be told that the evidence Samsung failed to preserve should be assumed to be evidence that supports Apple’s position and undercuts Samsung’s position in the lawsuit.
Although this type of destruction of evidence is often inadvertent, courts are generally unforgiving and hold companies to exacting standards for the preservation of evidence. Employment litigation often involves email correspondence, sometimes going back years and sometimes critical to the outcome. If your company has been sued and you haven’t been instructed about evidence preservation, start asking questions!