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Defendant’s ESI Default Spoliation Sanction Reduced

Posted on February 22nd, 2017

ESI Spoliation SanctionsDallas Buyers Club, LLC v. Huszar, Case No. 15-907 (D. Oregon, Feb. 6, 2017) is a copyright infringement case in which Plaintiff accused Defendant of illegally downloading the movie Dallas Buyers Club using BitTorrent. Defendant used a certain computer for these activities, and Defendant alleged that about six months after he learned of the lawsuit, that computer showed signs of failure. He moved certain business related virtual machines to a new computer, but not the software used to download the movie. Defendant then overwrote the data on the old computer by using a tool in an effort to repair it.

Plaintiff filed a spoliation sanctions motion, which was put before the magistrate judge for decision. The magistrate judge recommended granting the spoliation motion and entering a default order against Defendant as the appropriate sanction. Defendant objected to the magistrate judge’s findings, and Plaintiff responded to the objection. The matter went before the presiding district judge for review.

Defendant, who was pro se, included additional evidence not on the record in his objection but did not swear to the new facts in an affidavit. The district judge acknowledged that he had discretion to consider the additional evidence, and he would do so, since Plaintiff did not object to its introduction. Reviewing the findings de novo, the court noted that whether ESI spoliation sanctions were appropriate hinged upon the degree of the spoliating party’s fault, the degree of prejudice,  and the availability of lesser sanctions to avoid substantial unfairness. Further, prior to considering the ultimate sanction of dismissal, the court must consider certain factors, such as public interest in quick resolution of litigation, the court’s need to manage its dockets, the risk of prejudice to the party seeking sanctions, public policy in favor of deciding cases on their merits, and the availability of lesser sanctions.

The court found that, although Defendant was on notice of the lawsuit, and did deliberately destroy the data and prejudice Plaintiff, he did not have the requisite level of deliberate intent to deceive to warrant the default sanction.  The court therefore granted Plaintiff’s motion in part and ordered an adverse inference instruction as a sanction.

ILS – Plaintiff Electronic Discovery Experts

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