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Jury won't hear about Apple and Samsung's lost e-mails

Information about both companies failing to protect e-mail and other documents for evidence won't be known by jurors.

James Martin/CNET

SAN JOSE, Calif. -- Facing disclosure to a jury that both Apple and Samsung failed to uphold document retention laws, the two companies struck a deal to keep the matter private.

The offer came during a public hearing before U.S. District Court Judge Lucy Koh earlier today as both sides hashed out last-minute jury instructions and the particulars of a verdict form.

After Koh told Apple that she would be siding with Samsung over a retaliatory filing that would require her to tell jurors that both companies failed to retain e-mails (and other documents that might be critical to the case), Apple agreed to the idea.

Koh's order will arrive in signed form later tonight or early tomorrow, she told both sides at the end of the hearing.

At risk for both companies is appearing to have willfully hidden, or somehow failed on retaining e-mails, evidence that could have turned out to be crucial in deciding the outcome of the case.

Some of the most damning, or simply noteworthy evidence in the case has been the internal e-mail threads. On Apple's side, that's been exchanges between executives talking about designs, as well as a thread about a 7-inch version of the iPad. For Samsung, its been meeting notes citing a "crisis of design" as well as indications the company had been told by Google to make its products less similar to Apple's.

The evidence portion of the trial wrapped up last week, and as one would imagine, has been rife with disputes between the two companies. Some of the latest included what version of the software the example devices were running, an important issue given that certain iOS and Android builds did not include infringing features, while some later versions added workarounds.

Tomorrow marks the last phase of the trial, as both sides present their closing arguments and the jury is given instructions on how to correctly go about deciding the case. Part of that involves a painstakingly detailed damages form that requires jurors to select which devices infringed on patents from either side, as well as assign damages.