As you may have heard, Samsung asked an Australian judge yesterday for an order requiring Apple to hand over source code and mobile telco agreements relating to the iPhone 4s. The early reactions assumed that this request is similar to Samsung's failed attempt to get pre-launch (or non-existent) "iPhone 5" and "iPad 3" product specifications in its US case against Apple. But this is actually quite different — it's exactly what Samsung should be asking for at this point.
Two main components go into a patent plaintiff's case: infringement and damages. In order to prove an alleged patent infringement, it's pretty clear Samsung will need to see the relevant parts of Apple's code, just as Apple will need to examine the relevant parts of Android for its case. It would be nearly impossible to demonstrate how a specific device actually operates internally without access to its code. That doesn't mean Samsung will necessarily be able to see all of Apple's code; it's likely it will just get access to the parts that are affected by its patent claims. And Samsung's second request to secure the agreements between Apple and the Australian carriers seems reasonable as well — it can make a strong argument that it needs the telco's iPhone-related revenue and share data in order to calculate any potential damages Apple may have to pay.
Samsung was primarily acting in a defensive capacity when it asked the US judge to hand over the goods on unreleased iOS devices — a bad argument that smelled of desperation from the very beginning. Conversely, Samsung's recent discovery request in Australia appears, at least on its face, to be a legitimate attempt to build an offensive case against Apple and the iPhone 4s. Now, what the Australian court might do is obviously a guessing game, but it's doubtful the judge will think these new requests are baseless. We'll see what happens.