E-Discovery Decision Demonstrates Need For Effective Retention Practices: A Great Case Study For E-Discovery Training

I’m still catching up on December news…and I ran across a significant e-discovery ruling. The U.S. District Court for the Central District of California ruled December 13, 2007, that Justin Bunnell/www.TorrentSpy.com was guilty of “willful spoliation of evidence” violating the E-Discovery Rule in the suit Columbia Pictures, Inc. brought against them for copyright infringement.
Reading through the court records, it is really amazing how blatantly the defendent violated what seemed to be almost every e-discovery rule possible in this situation. They…

* Actively pursued deleting and modifying “‘hundreds or thousands’ of postings on the Terrentspy forums that included references to copyright infringement.” One of Torrentspy’s senior managers even posted the following to forum moderators, “We need to make sure that these forums stay clear of anything related to piracy. If people talk about piracy or ask for pirated works, then it can be used against us in court. Please make sure to be on the watch for these kinds of things and remove them promptly. I’d even recommend using the search engine to find past threads that may hurt us.
What was he thinking!? He obviously did not understand his legal obligations for e-discovery.
Besides deleting postings, the moderators also modified original postings in an attempt to remove evidence of actual piracy activity.
* Deleted directory headings for copyrighted works, while still making the copyrighted works available.
* Deleted/modified user IP addresses. According to records they actually did this AFTER they claimed they never recorded full IP addresses! However, some discovered forum postings from the moderators revealed that full IP addresses were indeed collected regularly.
* Stated, under oath, that the actual names and addresses of all the Torrentspy’s moderators were unknown, but then interviews with some of the volunteer moderators revealed that they did, indeed, provide their real names and addresses…and in fact Torrentspy mailed Torrentspy t-shirts to the volunteer moderators.
What were these guys thinking!?
The incredible mountain of evidence and willful destruction of evidence led to the court’s ruling against Torrentspy.
In a ruling earlier in the year, a magistrate judge imposed lesser sanctions and a $30,000 fine for withheld evidence in an earlier proceeding. The magistrate warned the defendant then that more serious sanctions would be imposed for continued non-compliance.
But they continued to try and modify and delete the electronic evidence.
What were these guys thinking!?
I found the judge’s summary interesting:

“Defendants’ conduct during discovery in this case has been obstreperous. They have engaged in widespread and systematic efforts to destroy evidence and have provided false testimony under oath in an effort to hide evidence of such destruction. Indeed, Defendants’ lateness and incomplete responses to discovery requests have led the Magistrate Judge to warn or sanction them on more than one occasion. Although termination of a case is a harsh sanction appropriate only in “extraordinary circumstances,” Halaco Eng’g Co. v. Costle, 843 F.2d at 380, the circumstances in this case are sufficiently extraordinary to merit such a sanction. Lesser sanction would not be adequate to punish the defendants for the wrongful conduct and ameliorate the prejudice and harm to the plaintiffs.”

I learned a new word…but it’s a great one: obstreperous. “1 : marked by unruly or aggressive noisiness : clamorous 2 : stubbornly resistant to control : unruly
What kind of lawyer(s) did Torrentspy have? It seems like they must not have had any knowledge of computer technology or electronic data, logging, etc.
What procedures do you have in place for e-discovery at your organization?
Last year I wrote a white paper following the release (in December 2006) of the updated E-Discovery Rule; “E-Discovery Quagmires.”I also have posted several times about the e-discovery issues, such as here and here.
Take the information and talk to your company’s legal counsel about e-discovery issues, and make sure your e-discovery policies and procedures are up-to-date and effective.
You don’t want to make the news headlines and have all the readers wonder about your company, What were they thinking!?”

Tags: , , , , , , , , , , , , , , , , ,

Leave a Reply