Samsung last Wednesday was ordered to hand over to Apple five as-of-yet unreleased products so that Apple can compare them to their own offerings ahead of litigation.

Update: To be clear, the Judge approved Apple’s request. However, the products in question will be for “outside counsel eyes only.” In other words, Apple and its legal staff will not be privy to the materials just yet.

Judge Lucy Koh explained, “Apple has demonstrated good cause for some, limited expedited discovery. While Apple has not yet filed a motion for preliminary injunction, courts have found that expedited discovery may be justified to allow a plaintiff to determine whether to seek an early injunction.”

The obvious question is how Apple can request to see products that haven’t been released yet, especially in light of Samsung’s assertion that the products in question may not be representative of the final shipping version. Countering that, Koh explained that Samsung has been quite vociferous in its efforts to tout its upcoming products via images and demo units. Specifically, Koh pointed to Samsung giving away 5,000 free Galaxy Tab 10.1 devices to attendees at this year’s Google I/O conference which went down earlier this month.

Helping their cause, Apple presented to the judge a news report which quotes a Samsung executive saying that they will have to improve parts of their upcoming Galaxy Tab 10.1 tablet in light of the thinner iPad 2 from Apple.

While Koh’s ruling bears no weight as to the merits of Apple claims, her opinion emphasizes that the evidence proffered by Apple thus far, namely via images of Samsung products set against Apple products, is enough to create a reasonable basis to believe that Samsung’s products “are designed to mimic Apple’s products.”

Now as to why Judge Kho felt that Apple was entitled to upcoming Samsung products, she explains:

In particular, the design and appearance of Samsung’s forthcoming products and packaging are directly relevant to Apple’s trademark, trade dress, and design claims. Because these claims are subject to consumer confusion and “ordinary observer” standards, the products themselves and the packaging in which they are sold are likely to be central to any motion for preliminary injunction.

Samsung now has 30 days to hand over devices, packaging, and package inserts for the following products: The Galaxy S2, the Galaxy Tab 8.9, the Galaxy Tab 10.1, the Infuse 4G, and the Droid Charge.”

Samsung naturally claimed that releasing said information to a competitor would put it at a competitive disadvantage, but Kuo, again, highlighted that Samsung has “already released images and samples of its forthcoming products to the media and members of the public.”

One area where Apple did not emerge victorious was in its efforts to depose Samsung executives, a request which Judge Kho felt was too burdensome given the short amount of time Samsung executives would have to prepare.

This is getting good, folks.

via Courthouse News