If discovery is a battlefield, electronic discovery can be a minefield. Nonetheless, a copyright case featuring an adult film reminds us that the basics always apply. In this case, the basics include meeting the burden of proof, and following the Court’s instructions.
Plaintiff Malibu Media, LLC accused Michael Harrison of copyright infringement for illegally downloading its film “Pretty Back Door Baby,” and ultimately sought sanctions for spoliation when Harrison revealed he’d destroyed a computer hard drive several months after he was notified of pending litigation.
The judge’s order discussed at length the elements of spoliation, which requires intent, and said Plaintiff did not prove it.
Defendant Harrison testified that the hard drive had failed in a computer he used exclusively for gaming. He said gaming creates a demanding load for a computer, and he therefore made it a rule to keep his gaming computer free from any additional tasks – like downloading movies – that would slow it down and place additional strains on it. Harrison had another laptop where he performed all other activities.
A buddy who owed Harrison money settled the debt by purchasing a replacement drive for the gaming computer. Harrison said he deposited the old drive at an electronics recycling facility where he used to work. Judge Mark Dinsmore found Harrison’s testimony credible.
Judge Dinsmore’s other salient point came in a footnote. Habeas Hard Drive seizes on it as a teachable event.
Malibu Media filed an amended complaint once Harrison’s personal identity had been determined from a list of IP addresses provided by Comcast, the third-party internet service provider. But Malibu dragged its feet on the next step.
The judge chastised Plaintiff as follows:
“…Had plaintiff complied with the Court’s order and “immediately” undertaken efforts to serve its amended complaint on Harrison, Plaintiff’s current motion for sanctions would rest on firmer ground: in such case, Defendant’s destruction of the hard drive would have occurred after service of the amended complaint, and it would be much easier for the Court to infer that Defendant’s conduct was an attempt to hide information… As it is however, Plaintiff did not serve Harrison for approximately five moths after amending its complaint, and thus cannot benefit from such an inference.”
Five months?! Plaintiff’s counsel surely had its reasons, but time is of the essence when it comes to digital evidence. Even if the drive had been produced in compliance with Plaintiff’s request, the data might well have been missing, altered or corrupted after five months. The very act of turning on a computer can alter stored data, never mind the stresses of video gaming.
Back to Defendant Harrison, who testified that he did not initially grasp that he, personally, was being sued when he received notice from Comcast. The notice said Harrison had been identified by IP address in a federal lawsuit alleging copyright infringement. The language seems reasonably clear to Habeas Hard Drive, but let’s grant Harrison his confusion.
Preservation letters for digital evidence must be quickly executed, and they must be absolutely specific. Of note: most people do not interpret the word “documents” to mean anything other than “documents.” Laypersons will not automatically extend the definition of “documents” to include computer hard drives, USB drives, sim cards, or other digital document storage devices.
Litigators relying on a third-party to serve notice should provide suggested language to make it absolutely clear what is transpiring (a lawsuit); who is being sued (the recipient of this notice); why the notice is being sent through the third party (requirements of the law); what must be preserved (with specificity, meaning the commonly-used generic names of items, and brand names if known and applicable); and how to preserve the items (take them to your attorney’s office, or lock them in a closet to avoid accidental loss, theft, or alteration of data).
The letter should also offer instructions in the event that a device cannot be taken out of service for the purpose of preservation. This presents forensic challenges, and the best course of action depends on the situation. Habeas Hard Drive is happy to provide further advice in these cases.