Update: The tactic worked. 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.

Bloomberg reported today that Samsung chief Kwon Oh Hyun and Apple chief Tim Cook will speak on the phone today ahead of jury deliberations in the ongoing Apple v. Samsung trial in San Jose. Another update in the case comes from paid blogger Florian Mueller (most recently funded by Microsoft and Oracle), who reported a previous ruling from Magistrate Judge Paul S. Grewal, to only provide an adverse inference jury instruction against Samsung, was overruled by Judge Lucy Koh in a decision late yesterday.

Therefore, instead of the jury hearing only a statement regarding Samsung failing to preserve evidence, jurors will also hear the same statement related to Apple. According to Mueller, Samsung claimed that “Apple’s duty to preserve email must have arisen no later than Samsung’s duty.”

Samsung pointed out that Apple neglected to provide emails from former CEO Steve Jobs mentioning the patent trial from 2010 until his resignation and death in 2011. That was apparently enough to convince the judge.

The instruction the court plans to give the jury before deliberations on Wednesday —unless Apple can get Koh to change her decision in a hearing today— is below.

“Samsung Electronics Company has failed to preserve evidence for Apple’s use in this litigation after Samsung Electronics Company’s duty to preserve arose. Whether this fact is important to you in reaching a verdict in this case is for you to decide.”

And the same thing about Apple:

“Apple has failed to preserve evidence for Samsung’s use in this litigation after Apple’s duty to preserve arose. Whether this fact is important to you in reaching a verdict in this case is for you to decide.”

The paid blogger’s take:

Apple is still in a very good position to win this case. But it would have been even easier for Apple to prevail if Judge Koh had upheld Magistrate Judge Grewal’s decisions. The issue of deleted emails would have helped Apple particularly in connection with the question of willful infringement. Now there will be two extremely soft instructions that cancel each other out.