Court Rejects Defendants’ Argument that No Spoliation Occurred Because Deleted Files Could Still Be Restored
In its Report and Recommendation on Plaintiff’s Motion for Sanctions in Malibu Media, LLC v. Tashiro, Case No. 13-cv-00205, published May 18, 2015, the United States District Court for the Southern District of Indiana considered whether spoliation had occurred in this copyright infringement case after Plaintiffs informed the court that a hard drive produced by Defendants contained evidence of file deletion.
Plaintiff claims that Defendants unlawfully downloaded Plaintiff’s movies via the BitTorrent file distribution network. During the discovery phase, Defendants agreed to turn over their hard drives. Plaintiff’s expert concluded that thousands of files had been deleted from the hard drives the day before Defendants produced them to Plaintiff’s eDiscovery team for computer forensic imaging. Plaintiff filed a Motion for Sanctions for spoliation of evidence.
The court noted that spoliation occurs in the 7th Circuit when if a party 1) had a duty to preserve evidence because it knew or should have known of imminent litigation, and 2) destroyed evidence in bad faith, meaning that party destroyed evidence for the purpose of hiding information, citing Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008); Norman-Nunnery v. Madison Area Technical Coll., 625 F.3d 422, 429 (7th Cir. 2010); Mathis v. John Morden Buick, Inc., 136 F.3d 1153, 1155 (7th Cir. 1998); and Bracey v. Grondin, 712 F.3d 1012, 1019 (7th Cir. 2013).
The court awarded spoliation sanctions, concluding that both Defendants had a duty to preserve the files, and that they deleted the files in bad faith. Defendants argued that because the files were recoverable, spoliation had not occurred. The court rejected this argument, noting that discovery sanctions would be “hollow” if only applied when the offending party successfully destroyed evidence. Further, the court noted that deleting electronically stored information can have evidentiary ramifications (e.g., when an electronic file is a deleted, the metadata changes, which creates authenticity problems for a party wishing to use the file as evidence.) In this case, the deletion of the files had altered the metadata, which impeded Plaintiff’s use of the files to prove its claims.