Electronic Discovery Law

Atlantic Recording Corp. v. Howell, 2008 WL 4080008 (D. Ariz. Aug. 29, 2008)

In this copyright infringement litigation, seven major recording companies alleged that defendant Howell had used the KaZaA file-sharing program to download their sound recordings and distribute them to other users of the network.  Howell had previously resisted plaintiffs’ efforts to conduct a forensic examination of his computer hard drive, and the court had granted plaintiffs’ motion to compel and granted leave to take additional discovery.  With the benefit of this additional discovery, plaintiffs moved for terminating sanctions based on Howell's willful spoliation of material evidence.

Based on the evidence presented, the court found that:

•  Defendant removed the KaZaA program from his computer and deleted the contents of the shared folder shortly after receiving notice of the lawsuit

•  The “backup” DVDs that defendant claimed he created did not preserve the substantial amount of material evidence that he destroyed by uninstalling KaZaA, and appeared to be created well after he removed KaZaA from his computer

•  Defendant reinstalled his computer's operating system after he had received plaintiffs’ requests for copies of various files on his computer

•  Defendant downloaded a program called Aevita Wipe & Delete shortly after he filed his answer in the case, then, in the middle of the discovery period, used that program to permanently delete all traces of certain files on his computer

The court rejected defendant’s explanation that he was only trying to ensure that KaZaA would no longer function on his computer:

But Howell had the means to prevent KaZaA from continuing to function and also preserve the evidence.  Given the serious claims he was confronting, he would have done so if that evidence was as powerfully exonerating as he describes.  It is implausible that Howell would destroy the only evidence that could exonerate him simply to remove KaZaA from his computer.  It is entirely incredible that his systematic and pervasive destruction of every last bit of evidence pertaining to the claims against him was simply an effort to tidy up his computer.  The timing and character of Howell's actions show that they were deliberately calculated to conceal the truth and that he willfully destroyed evidence to deceive the court.

The court found that defendant’s “brazen destruction of evidence” had wholly undermined the integrity of the proceedings and made it impossible to decide the case on the merits.  It concluded that the prejudice to the court and to the recording companies was irretrievable, and that default judgment was the only appropriate sanction, both for its deterrent effect and to remedy the prejudice inflicted on plaintiffs and on the court.

Accordingly, the court struck defendant’s answer and entered default judgment against defendant for $40,500 in statutory damages.