Electronic Discovery Law

Posted at 10:30 AM on January 13, 2005 by K&L Gates

Defendant's Use of "Evidence Eliminator" Software Warrants Adverse Inference

DirecTV, Inc. v. Borow, 2005 WL 43261 (N.D.Ill. Jan. 6, 2005)

In this case, the court granted summary judgment in favor of plaintiff DirecTV and against defendant Randy Borow on claims stemming from Borow's unauthorized use of plaintiff's satellite television signal. Summary judgment was warranted, in part, because defendant had not offered sufficient evidence to rebut the presumption that arose from his destruction of relevant evidence.

Five months after plaintiff filed its complaint, defendant used a software program called "Evidence Eliminator" to erase evidence requested by plaintiff from his computer. After defendant's computer was surrendered for inspection, plaintiff's forensics expert was able to recover some deleted files, including programs used by satellite pirates to intercept plaintiff's encrypted signal and files that listed the names of piracy websites that defendant visited or to which he had subscribed. However, other files were permanently deleted. On plaintiff's earlier motion for sanctions, the court concluded that the defendant had acted in bad faith and deliberately destroyed relevant evidence. On summary judgment, the court afforded plaintiff an adverse inference that the destroyed documents would not have favored the defense. Defendant failed to properly oppose summary judgment, and offered only general denials of the facts demonstrating his acts of piracy and evidence spoliation.

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