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Feb
28
Default judgment granted for willful spoliation of evidence
February 28, 2008 | 1 Comment
Columbia Pictures, Inc. v. Bunnell, 2007 U.S. Dist. LEXIS 96360 (C.D. Cal. Dec. 13, 2007)
In a previous decision, the court had held that defendants were obligated to preserve data held in server RAM. Here, plaintiffs sought a default judgment based on defendants’ intentional destruction of evidence. They described four ways in which defendants had altered electronic data.
The suit involved copyright infringement via illegal downloading and file sharing of movies produced by plaintiff. The first method of spoliation involved a “plan to delete and modify ‘hundreds or thousands’ of postings on Torrentspy forums whose content included references to copyright infringement.” Id. at *4. Plaintiff produced several examples of postings referring to the need to delete incriminating postings. One such posting described an effort to hide incriminating forum threads. In other instances, names of copyrighted movies were replaced with “[some movie 1]” or “[some movie 2]”.
Defendants also changed the names of directories of copyrighted television shows. Individual shows formerly had their own directories containing different episodes. Defendants deleted the directories and placed the files into an unsorted directories with names like “TV-Unsorted.” Contrary to their representations, defendants failed to produce “previously existing, unaltered versions of their directories,” although they may exist on cached search engine sites. Id. at *9.
Defendants also claimed (under oath) that they did not maintain copies of full IP addresses, necessary for plaintiffs to determine the extent of infringement, and whether defendants themselves had actually infringed themselves. Only the first 9 numbers (out of 12) of the addresses were allegedly maintained. Forum postings between the moderators of defendants’ website, however, referred to full IP addresses; for example, requesting that certain users be banned. Id. at *10. Deposition testimony indicated that full IP addresses were maintained until April, 2007, although the magistrate had ordered full IP addresses to be produced in February, 2007. Id. at *11.
Finally, defendants had testified under oath that site moderators were known only by nicknames. However, other deponents mentioned using the full names of moderators, in one instance to send them Torrentspy t-shirts.
The court found that defendants’ spoliation of evidence was undertaken willfully and in bad faith. Among the deleted evidence were directory headings containing copyrighted works and forum posts “explaining how to locate and download specific copyrighted works.”
In particular, the postings and directory headings are significant in demonstrating whether Defendants knowingly contributed to copyright infringement. This evidence was not deleted or modified negligently, but intentionally in direct response to the institution of this suit. Therefore, Defendants’ conduct constitutes willful spoliation.
Id. at *16. Defendants claimed that they had assumed plaintiffs had already made copies of the deleted material. However, defendants were obligated to preserve the offending material. They could have achieved their stated desire of avoiding further liability by taking the offending material offline and copying it for discovery purposes. The original material could no longer be produced. Id. at *17.
The failure to produce full IP addresses was willful given that defendants had access to such addresses as late as April, 2007, but had failed to produce them in the February, 2007 order. In addition, the failure to disclose names and addresses of website moderators was willful, as the evidence demonstrated that those names were known to defendants.
The court weighed whether default judgment was an appropriate sanction under a 5-factor test cited in Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995). The expeditious resolution of litigation and court docket management factors weighed strongly in favor of default given the large amounts of time and resources spent on resolving the discovery disputes engendered by defendants’ conduct in the litigation.
In addition, the court found “that Plaintiffs have suffered prejudice, to the extent that a rightful decision is not possible.” Id. at *20. The deletion of forum posts explaining how to download copyrighted works “has prejudiced Plaintiffs’ ability to demonstrate Defendants’ alleged inducement or encouragement of infringement, necessary to prove contributory infringement. This altered or deleted evidence also would have been relevant to proving Defendants’ failure to exercise its right to stop or limit infringement, necessary to prove vicarious infringement..” Id. Failure to produce the directory information was similarly prejudicial. The failure to produce the names of other moderators was prejudicial, since it was likely that the missing moderators would have given damaging testimony similar to that given by identified moderators. Although plaintiffs had been able to locate some evidence despite defendants’ conduct, the factor also weighed strongly in favor of default.
The public policy factor in favor of deciding cases on the merits weighed against entry of default judgment, as the public importance of the case had been demonstrated by the filing of an amicus brief. Id. at *22-*23.
The factor of lesser available sanctions had been expressly raised in oral argument by the court. Plaintiff maintained that no lesser sanctions were appropriate, while defendants had not offered any alternatives in response. The court noted that defendants had already been subject to monetary sanctions, and had been deemed to waive certain privilege arguments. Defendants were also warned about more severe sanctions if they continued to ignore court orders.
The court concluded that “no lesser sanctions would be appropriate or effective.” Exclusion of evidence would be futile, as the issue was defendants’ destruction of evidence. In addition, “fashioning a jury instruction which creates a presumption in favor of Plaintiffs would leave Plaintiffs equally helpless to rebut any material that Defendants might use to overcome the presumption.” Id. at *24. Finally, monetary sanctions had been tried and were ineffective.
The court concluded:
Defendants’ conduct during discovery in this case has been obstreperous. They have engaged in widespread and systematic efforts to destroy evidence and have provided false testimony under oath in an effort to hide evidence of such destruction. Indeed, Defendants’ lateness and incomplete responses to discovery requests have led the Magistrate Judge to warn or sanction them on more than one occasion. 8 Although termination of a case is a harsh sanction appropriate only in “extraordinary circumstances,” …the circumstances in this case are sufficiently extraordinary to merit such a sanction. Lesser sanctions would not be adequate to punish the defendants for the wrongful conduct and ameliorate the prejudice and harm to the plaintiffs.
Id. at *24-*25 (citation omitted).
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[...] For a good blog on this final chapter to the RAM memory case, see Larry Wescott’s blog of February 28, 2008. For a good analysis of the entire saga, see the recent BNA article by Bill Hamilton and Martin Jaron, entitled Battering RAM: Default Judgment Entered in Columbia Pictures v. Bunnell for Defendants’ Spoliation of Evidence. [...]