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Sent to you by pakurilecz via Google Reader: Defendant's "Brazen
Destruction of Evidence" Warrants Default Judgment via Electronic
Discovery Law by [log in to unmask] (K&L Gates) on 9/9/08
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.

A copy of the full decision is available here.


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