In GoPro, Inc. v. 360Heros, Inc, No. 16-cv-01944-SI, (N.D.Cal. 2018), the Court denied Defendant’s motion for summary judgment and granted Plaintiff’s motion for sanctions.
During discovery related to the parties’ dispute regarding federal and state trademark infringement and unfair competition, Defendant 360Heros, Inc., (“Defendant”) produced transcripts of two Skype conversations.
GoPro, Inc. (“Plaintiff”) alleged that Defendant intentionally altered the Skype evidence and moved for terminating sanctions or for evidentiary and instructional sanctions. According to Plaintiff, in November of 2016, in response to Plaintiff’s investigation of Defendant’s prior use defense, Defendant produced to Plaintiff two emails containing the transcript of two 2014 Skype conversations between two of Defendants’ executives. In the Skype conversations as produced by Defendant, the executives used the word “abyss” twice.
At his deposition, the executive testified that the transcript was a true and correct copy of the Skype conversation. The executive said he had copied and pasted the Skype conversation into an email, and then sent it to himself. He claimed the only alteration he made to the document was to highlight the two lines of conversation containing the word abyss. In response to GoPro’s request for the Skype files in their native form, the executive claimed the original Skype conversation is no longer available to him.
As part of its investigation into Defendant’s claims, Plaintiff accessed equipment containing the other end of the Skype conversation. It did not contain the two highlighted lines referencing “abyss.” To confirm their findings, Plaintiff retained BlackStone Discovery to conduct a forensic analysis. The analysis confirmed that the Skype database did not contain the two highlighted lines referencing abyss.
A terminating sanction, such as dismissal or default, is a harsh penalty and should only be imposed in extreme circumstances. The Court is not persuaded by Defendant’s explanation of the suspect document and concludes that Defendant deliberately altered it to strengthen its legal position. Plaintiff argues it has been prejudiced and incurred various expenses, including having to locate and hire an expert to forensically investigate the Skype chat. Accordingly, the Court finds that sanctions are warranted, and that the appropriate sanctions in this case are twofold: an adverse inference instruction at trial regarding the alteration of the Skype conversation, and reimbursement to GoPro of the costs incurred in retaining the forensic analyst.