Facing disclosure to a federal 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 in San Jose, Calif., Monday as both sides hashed out last-minute jury instructions and the particulars of a verdict form, Cnet reported.

Meanwhile, the chief executives of Apple and Samsung have talked but did not settle their high-stakes patent dispute, a Samsung attorney said in court on Monday.

Koh had requested that the two talk on the phone at least once more before the jury begins deliberating this week, Reuters reported.

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 emails -- and other documents that might be critical to the case -- Apple agreed to the idea, Cnet reported.

Koh's order will arrive in a signed form later Monday night or early Tuesday, 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 emails, evidence that could have turned out to be crucial in deciding the outcome of the case.

Some of the most damaging evidence in the case has been the internal email threads. On Apple's side, these include exchanges between executives talking about designs, as well as a thread about a 7-inch version of the iPad. For Samsung, there are 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. 

Apple and Samsung are going toe-to-toe in a patent dispute that mirrors the struggle for industry supremacy between the two rivals that control more than half of worldwide smartphone sales.

Apple accuses Samsung of copying the design and some features of its iPad and iPhone and is asking for a sales ban, in addition to monetary damages. South Korea's Samsung, which is trying to expand in the United States, says Apple infringed several patents, including some for its key wireless technology.

Top executives from both companies had participated in mediation with a U.S. magistrate judge before trial, but Koh asked them to explore settlement once again.

"I see risks here for both sides," Koh said last week.

Closing arguments are scheduled for Tuesday. In court on Monday, Samsung attorney Kevin Johnson told Koh nothing had come from the talk.

"We will see you tomorrow," Johnson said.

The case in U.S. District Court, Northern District of California, is Apple Inc v. Samsung Electronics Co Ltd et al, No. 11-1846.

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