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Deletion of ESI Assists Plaintiff’s Motion for Summary Judgment in Infringement Case

Posted on October 24th, 2014

UMG Recording, et al., v. Escape Media, Inc., No, 11 Civ. 8407 (S.D.N.Y. Sept 29, 2014) is a trademark infringement case. Plaintiffs are license holders alleging Defendants illegally provided millions of users large amounts of copyrighted electronic data (music recordings.) After electronic discovery was produced, Plaintiffs alleged three instances of spoliation of electronically stored information (ESI):

  1. Plaintiffs requested Defendants’ upload records, which was a database that contained all the files uploaded to the central server each year. Other discovery suggested that approximately 687 relevant recordings were uploaded, but none of the data produced contained information about those recordings. Plaintiffs’ expert concluded it must be due to Defendants deleting the files.
  2. Plaintiffs’ expert also alleged that based on comparing data, there were approximately 320,000 files that appeared in the Upload Report, but such data was not produced and it appeared that such electronic data had been permanently deleted over the course of litigation. Due to the failure to preserve the methods of encryption, Plaintiffs were unable to determine which employee user accounts deleted the files.
  3. Plaintiffs alleged Defendants failed to preserve over a year and a half of historical source code. Plaintiffs’ expert testified that the deleted source code files and related data would have provided additional corroborative evidence of infringement.

The court found that Defendants definitely had a duty to preserve this electronic data. Second, regarding the culpable state of mind, it found the deletion of missing data was done intentionally and in bad faith. As sanction, the court found the deleted data supported the contention that Defendants streamed each of the illegally uploaded recordings 21,000 times. Regarding the source code, the Court agreed that Defendants should not benefit from any uncertainty regarding the source code. The court then partially granted Plaintiffs’ Motion for Summary Judgment in consideration of this spoliation and other factors.

ILS – Plaintiff Electronic Discovery Experts

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