If the long-running courtroom battle between Apple and Samsung were a football game, the South Korean company would have received today a favorable call from the ref. U.S. District Judge Lucy Koh will tell jurors later this week that both companies destroyed emails, overturning a previous ruling inferring Samsung was solely to blame.

In instructions to be given the jury set to begin deliberations Wednesday, Koh will give identical instructions regarding company emails destroyed:

Both companies “failed to preserve evidence” that could be used in the litigation, Koh will say. “Whether this fact is important to you in reaching a verdict in this case is for you to decide.”

Samsung had unsuccessfully argued to Magistrate Judge Paul S. Grewal that Apple likely destroyed emails no later than the South Korean company. Koh’s ruling provides the even-footing with jurors that Samsung had wanted. For patent expert Florian Mueller, writing at FOSS Patents, the judge “missed an opportunity to show strength and treat companies differently if the facts warrant it.”

While the judge’s decision appears to give Samsung a slight edge, the ruling could provide Apple with cause to appeal the eventual ruling, should it go against the Cupertino, Calif. iPhone maker.