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Bad Faith ESI Destruction A Question For The Jury

Posted on June 29th, 2015

In Malibu Media, LLC v. Michael Harrison, Case No. 12-cv-1117 (June 8, 2015), the Southern District of Indiana considered Plaintiff’s objection to the magistrate judge’s recommendation that the court should not sanction Defendant for destroying evidence.

Plaintiff, a limited liability company that makes pornographic films, accused Defendant of illegally downloading its movies via BitTorrent. After Plaintiff filed its complaint, Defendant’s computer crashed. Defendant then removed his hard drive and took it to an electronics recycling company to have it “melted” (i.e., destroyed). He then obtained a new laptop and hard drive. Plaintiff computer forensic experts examined the new laptop and hard drive, and could not locate any evidence that either had ever been used to store or play Plaintiff’s movies.

Plaintiff filed a Motion for Sanctions against Defendant for destruction of evidence, seeking a default judgment against Defendant as to infringement. The assigned magistrate judge recommended that the court deny the motion. Plaintiff objected to the magistrate’s recommendation.

Defendant testified at his deposition that he had melted the hard drive because he was taking other electronics to the recycler and threw it in with the other electronics. He also testified that, although he received a notice through Comcast of the suit, he did not understand that Plaintiff had actually filed suit against him personally. The court noted that in the Seventh Circuit, a spoliation requires a finding that 1) the party knew or should have known that litigation was imminent, and that 2) the party destroyed the evidence in bad faith with the purpose of hiding adverse information. The trial judge determined that the question of whether Defendant acted in bad faith must be determined by the jury and rejected the magistrate judge’s recommendation to apply a default judgment sanction.

ILS – Plaintiff eDiscovery Experts

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