Electronic Discovery Law
Default Judgment Warranted by Deliberate and Bad Faith Spoliation, and to Deter Other Would-Be Spoliators
In this copyright infringement action based on internet file-sharing activities, plaintiffs sought terminating sanctions against defendant for spoliation of evidence. Plaintiffs alleged that defendant willfully destroyed critical evidence on her computer hard drive after notice of the lawsuit, notice of her obligation to preserve such evidence, and notice of the court’s order to produce her hard drive to plaintiffs so that a duplicate could be made for examination by plaintiffs’ computer forensics expert. Plaintiffs alleged that defendant deliberately used “wiping” software to permanently remove data from her hard drive – and then attempted to “cover her tracks” by deleting the “wiping” software before producing the hard drive to plaintiffs.
Plaintiffs’ computer forensics expert determined that two disk-cleaner utility programs (the “wiping” software) were used to permanently remove data from the hard drive. Data were first deleted in December 2005 after defendant had been served with the suit and received plaintiffs’ letter requesting inspection of her hard drive; the second time occurred the day after the court signed the order granting plaintiffs’ motion to compel the inspection. Defendant’s expert did not dispute that data were removed, but submitted that the wiping of the data was consistent with defragmentation of the hard drive. The court was not persuaded, finding that the evidence was inconsistent with an automatic defragmentation program.
The court concluded that defendant destroyed the material evidence deliberately and in bad faith, and that plaintiffs had been substantially prejudiced. It noted that the best proof of whether defendant violated plaintiffs’ copyrights would be to examine her computer’s hard drive which would show, among other things, the existence of any P2P file-sharing programs and the presence of plaintiffs' copyrighted sound recordings. However, defendant’s actions had rendered most of that information permanently irretrievable, and plaintiffs were instead “left to prove their case with the scant and piecemeal evidence remaining.”
The court went on to conclude that terminating sanctions were appropriate:
“[T]he most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.” Thus, the deterrent effect in the present case is not that a lesser sanction would dissuade defendant from destroying further evidence on her hard drive. That evidence is already gone. The sanction in the present case is to deter other defendants in similar cases from attempting to destroy or conceal evidence of their wrongdoing. The Court is of the opinion that lesser sanctions such as awarding plaintiffs attorney fees or giving the jury an adverse inference instruction at trial . . . would not provide sufficient deterrence from similar behavior in other cases. One who anticipates that compliance with discovery rules and the resulting production of damning evidence will produce an adverse judgment, will not likely be deterred from destroying that decisive evidence by any sanction less than the adverse judgment she is tempted to thus evade.
In this case, defendant's conduct shows such blatant contempt for this Court and a fundamental disregard for the judicial process that her behavior can only be adequately sanctioned with a default judgment. No lesser sanction will adequately punish this behavior and adequately deter its repetition in other cases.
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