Samsung's lawyers may have provided their clients access to highly confidential information such as Apple's patent licensing agreements with Nokia, Ericsson, Sharp and Philips, according to a court document.
The disclosure raises questions whether Samsung and its outside counsel may have broken a "protective order" that is meant to prevent confidential information from falling into the hands of competitors.
The documents had been provided as part of a fact discovery between August 2011 and March 2012 in a patent dispute between Apple and Samsung.
As fact discovery turned to expert discovery, Samsung's outside counsel sent it a report prepared by an expert about damages to be awarded for Apple's alleged infringement of Samsung's declared-essential patents. The distributed report however contained, intentionally or inadvertently, key terms of each of the four license agreements, according to the court.
Samsung's outside counsel posted the report on an FTP (file transfer protocol) site that was accessible by Samsung staff, and emailed instructions for accessing the site, which over 50 Samsung employees including licensing executives are said to have accessed. In a hearing earlier this week, Samsung's counsel repeatedly "denied even one violation of the protective order, asserting that such a violation can only occur willfully."
"Samsung is unable to provide evidence on even the most basic questions, such as: who has now had access to the confidential licensing information? For what purpose? When? Where? How?," U.S. Magistrate Judge Paul S. Grewal of U.S. District Court for the Northern District of California, San Jose division wrote in his order.
"Has Samsung relied on any of the confidential information in taking any position before any other court or jurisdiction? Exactly what steps has Samsung taken to prevent dissemination and use of the confidential information in the future? In each instance, the only response available seems to be, 'We're working on it,'" Grewal wrote.
The court decided Wednesday that letting Samsung and its counsel investigate the issue without any court supervision is unlikely to produce satisfactory results. "Rarely is the fox is permitted to investigate without supervision the disappearance of chickens at the henhouse," Grewal wrote.
Samsung is to produce to Apple no later than Oct. 16 the documents and witnesses that could establish whether Samsung and its counsel could be sanctioned for their conduct. Samsung could not be immediately reached for comment.
Join the CIO New Zealand group on LinkedIn. The group is open to CIOs, IT Directors, COOs, CTOs and senior IT managers.