A Pirate’s Right to Privacy: Don’t Download Copyrighted Information!

A Pirate’s Right to Privacy: Don’t Download Copyrighted Information!

Plaintiff justifies early discovery of identities of allegedly illegal downloaders of movie


Braun v. Primary Distributor Doe No. 1 and Defendant Does 2 through 69, No.: 12-cv-3690 YGR (JSC), 2012U.S.Dist. LEXIS 118396 (N.D.Cal.Aug. 21, 2012)


Plaintiff alleged that defendants used the BitTorrent peer-to-peer file sharing network to illegally download a video produced and copyrighted by plaintiff.  BitTorrent works as follows:


in a process called “seeding” an initial file-provider shares a file with P2P networks. Other users (“peers”) on the network connect to the seed file to download. Each new file downloader receives a different piece of data from each user who has already downloaded the file that together comprises the whole. This piecemeal system with multiple pieces of data coming from different peer members is called a “swarm.” As new peers request the same file, each new peer becomes a part of the network and the peers offer parts of the file stored on their computers to other peers. This means that every “node” or peer who has a copy of the infringing copyrighted material also becomes a source of download for that infringing file.


(Dkt. No. 4-1 ¶ 8.)  Through an intermediary, plaintiff was able to identify the IP addresses of the users accessing the video, as well as the dates and times the files were shared (roughly a 36 hour period).   Plaintiff sought expedited discovery in order to subpoena the relevant internet service providers (ISPs) in order to disclose the name, address, telephone number and email address for each IP address.


The court was satisfied that plaintiff had identified each defendant with sufficient specificity such that it could conclude that each defendant was subject to the court’s jurisdiction.  The IP addresses accurately reflected those addresses used to copy the video, and through geolocation technology, plaintiff had determined that the IP addresses were located inCalifornia.  Since defendants had accessed the video without any other identifying information other than their IP addresses, plaintiff could not further identify them without the information from the ISPs.


Plaintiff also made a prima facie showing that the complaint could withstand a motion to dismiss, demonstrating that it owned a valid copyright, and that each defendant had intentionally copied the covered work.  The evidence uncovered through geolocation technology would also be sufficient to support an inference that all defendants resided inCalifornia, which was sufficient to support the expedited discovery request.  Proper joinder of the defendants was also sufficiently demonstrated by plaintiff’s showing that all defendants were part of the same swarm, downloading the video over the 36 hour period; and thus were part of the same transaction, raising common issues of law and fact.


The court acknowledged that the actual identities of the downloaders might not be revealed by the information sought from the ISPs, as the internet connection “could have been used by the subscriber, by another member of the household, by a visitor to the household, or by someone secretly using an unsecure connection.”  However, plaintiff proposed that the subscribers be given a thirty day period to respond to and potentially contest the subpoena.  Plaintiff would be given the information only after the thirty days had passed without a successful challenge.


The court granted plaintiff’s motion, finding:  “In these circumstances, where Plaintiff has a good faith belief that the Doe Defendants reside in California, has submitted declarations outlining the steps it has taken to ensure that the identified Doe Defendants in fact downloaded Plaintiff’s copyrighted material, and has limited its case to a narrow period of time, the Court concludes that good cause has been shown.”

Is a Failure to Institute a Litigation Hold Considered Negligence Per Se?

Is a Failure to Institute a Litigation Hold Considered Negligence Per Se?

Chin v. Port Authority of New York and New Jersey, Nos. 10-1904-cv(L), 10-2031-cv(XAP), 2012 U.S. App. LEXIS 14088 (2d Cir. July 10, 2012)

The vast majority of precedents in the electronic discovery arena have been established at the federal district court level.  Chin is one of the rare precedents set at the appellate level, and is even more noteworthy in its holding contrary to one of the leading judicial authorities in the area.

In Pension Committee v. Banc of America Securities, 645 F. Supp. 2d 456, 465 (S.D.N.Y. 2010), Judge Scheindlin had held that “the failure to issue a written litigation hold constitutes gross negligence because that failure is likely to result in the destruction of relevant information.”    Based on this holding, plaintiff Howard Chin had argued that the destruction by the Port Authority of several folders containing information regarding his promotion in his Title VII discrimination action justified an adverse inference instruction.  Chin argued that the failure by the Port Authority to issue any litigation hold constituted gross negligence.

The court rejected the notion that the failure to issue a litigation hold was gross negligence per se. “Rather, we agree that “the better approach is to consider [the failure to adopt good preservation practices] as one factor” in the determination of whether discovery sanctions should issue…. we have repeatedly held that a “case-by-case approach to the failure to produce relevant evidence,” at the discretion of the district court, is appropriate.”  In this case, the district court had found that the destroyed folders played a “limited role” in the promotion process, and the plaintiffs had been able to produce “ample evidence” regarding their qualifications vis-à-vis the employees actually promoted.  Thus, the court concluded that, under these circumstances, an adverse inference instruction was inappropriate

Extortion by E-discovery: Court Grants Protective Order

Extortion by E-discovery: Court Grants Protective Order

Rodriguez-Torres v. Governmental Development Bank of Puerto Rico, 2010 U.S. Dist. LEXIS 3958 (D.P.R. Jan. 20, 2010)

In an employment discrimination case, plaintiff requestors sought emails and calendar entries in native format as follows:

For each year 2007, 2008, 2009, produce in native electronic format with its original metadata all e-mail communications and calendar entries describing, relating or referring to plaintiff Vicky Rodriguez, both inbound and outbound from co-defendant GDB’s messaging system servers. Particular attention to the following definition of extract key-words needs to be exercised: a) identification of Rodriguez by different variations of her name; b) designation of pejorative and derogatory terms typically used to demean persons according to their age and gender (including but not limited to phrases such as: vieja, nena, arrugas, anos, edad, etc.); c) designation of phrases which could be referring to the current and past litigations, and which could suggest retaliatory animus or activities (including but not limited to phrases such as: demanda, caso, testigos, demandada, plaintiff, etc.); d) designation of record custodians to include all co-defendants, and other unnamed GDB employees known to tease, insult and taunt Rodriguez based on her physical appearance and age….

Id. at *6-*7. Defendant producer GDB objected on the basis of overbreadth, and argued “that the requests by Plaintiffs are likely to produced hundreds if not thousands of documents which will include irrelevant, confidential and potentially privileged information.” Id. at *7. In a report commissioned at the court’s request, a consultant estimated the cost of production at $35,000.

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No Native for You! Judge Denies Plaintiff’s Request for Native Production

No Native for You! Judge Denies Plaintiff’s Request for Native Production

Secure Energy, Inc. v. Coal Synthetics, 2010 U.S. Dist. LEXIS 13532 (E.D. Mo. Feb. 17, 2010)

Plaintiff initially served their discovery requests on Defendnat on December 31, 2008. Plaintiff asked for “[a]ll documents relating to engineering plans and drawings developed as a result of the equipment bidding process for the Coal Synthetics Project(s).” On February 2, 2010, Plaintiff filed their motion for leave to file a motion to compel asking for production of the plans and drawings in native format. The discovery deadline was November 20, 2009 and all motions to compel were due by December 1, 2009. Requestor sought the drawings in native format because the metadata would show who created the drawings and whether they were created from another file, which would support requestor’s claim that the drawings were misappropriated.

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Court Suppresses E-discovery in Criminal Investigation for Government’s Bad Faith Seizure of Harddrives

Court Suppresses E-discovery in Criminal Investigation for Government’s Bad Faith Seizure of Harddrives

U.S. v. Metter, No. 10-CR-600 (DLI), 2011U.S. Dist. LEXIS 155130 (E.D.N.Y. May 17, 2012)


In this securities fraud action, the government had asserted that the defendant Metter had furthered the fraudulent scheme using his home computers, and after obtaining a valid warrant, seized four hard drives, among other items.  The government also seized 61 hard drives, pursuant to a valid warrant, from two companies, and also obtained email from the internet search providers of Metter and other co-defendants.  The Government made images of the hard drives and promptly returned them to their respective owners.


In November, 2010, the government stated that it intended to provide the defendants with image copies of the hard drives by January, 2011.  At that point, the government had not begun a privilege review, and could not estimate when the review would be completed.


At a status conference in February, 2011, the government stated that it would provide a list of computers and emails seized by March, 2011.  It also stated that it intended to produce all imaged evidence (without review) to all defendants, and then later conduct a privilege review.  The government would also set up a “taint team” to review the hard drives and email accounts for privilege issues.  Metter’s attorney expressed concern about the volume of confidential, irrelevant information of his client which would be made available to the other defendants, suggesting that each attorney review his clients’ material to weed out nonresponsive information.  The government objected to defendants’ counsel making determinations that information was outside of scope.  The court ordered the government to produce an inventory of the computers seized, and for defense counsel to review their clients’ computers for what they believed to be irrelevant or privileged evidence.


The government’s February 28, 2011 status report stated that the defendants could inspect the hard drives at the government’s office and lodge objections to evidence outside the scope of the warrant.  However, it also indicated that any attorney could request a copy of any other seized hard drive.  Metter immediately objected to the dissemination of the information on the hard drives without any review.


Fifteen months after the seizure, the government had still not conducted its review of the seized evidence to determine whether any information was outside the scope of the warrant, and had not determined when its privilege review would be complete.


Metter filed a motion to suppress the evidence, stating that the government’s significant delay violated the Fourth Amendment.  The government argued that seizure and off-site review of evidence was permissible under the Fourth Amendment, defendants had not suffered harm because the government had immediately returned the evidence, and that the delayed review was reasonable.


The court found that the reasonableness of the delay between seizure and review of electronic evidence required a case-by-case factual analysis, but that under the facts of this case, the government’s seizure was unreasonable.


The court first observed that as an image of an electronic document contained the same information as the original documents, the retention of images by the government raised the same privacy concerns as retention of the original documents.  Documents, both paper and electronic, raised different concerns than other types of evidence, because of the volume of information.   Thus, courts permitted the government to examine documents which could be outside the scope of the warrant to determine whether they fell within the scope of the warrant.  Similarly, the complexity of electronic evidence led courts to give the government some leeway in searching for relevant evidence, including the ability to search the evidence offsite.


The court acknowledged that the warrants obtained by the government and the imaging process itself were reasonable.  The problem was the government’s delay in beginning review of the evidence.  As of the date of the hearing, the government had no plan to begin review of the evidence.


The government’s retention of all imaged electronic documents, including personal emails, without any review whatsoever to determine not only their relevance to this case, but also to determine whether any recognized legal privileges attached to them, is unreasonable and disturbing.


Id. at *29. The court also found fault with the government’s intent to release images of the hard drives to the other defendants:


The Court agrees with Defendant that the release to the co-defendants of any and all seized electronic data without a predetermination of its privilege, nature or relevance to the charged criminal conduct only compounds the assault on his privacy concerns. It underscores the government’s utter disregard for and relinquishment of its duty to insure that its warrants are executed properly.


Id. at *29-*30.


Suppression of evidence is warranted when the government effects a “widespread seizure” of items outside the warrant’s scope, and it acts in bad faith.  The first prong of the test was met by the government’s seizure of all information contained on the drives and the email accounts.  The government’s bad faith was demonstrated by its promises to review the evidence, and its failure to do so after requests by both defense counsel and the court.  Metter’s motion to suppress the electronic evidence was granted.