ComputerForensicsDigest.com

Brief Summary: Plaintiff in copyright infringement suit petitioned trial court for spoliation sanctions when defendant wiped his hard drive after being notified of the lawsuit.

Facts: On March 9, 2005, John Davis was informed by his ISP, Comcast Cable Communications, that Paramount Pictures had subpoenaed his Internet records as part of an investigation into the illegal peer-to-peer distribution of the movie "Lemony Snicket: A Series of Unfortunate Events." Paramount obtained a court order to examine Davis's computer and hired Kroll Ontrack Electronic Evidence Services to do an analysis of Davis's hard drive. Kroll reported that on March 25, 2005, Davis had electronically wiped his hard drive and re-installed an operating system. Davis claimed that his actions were in anticipation of an unrelated sale of his computer. In a motion for summary judgment, Paramount argued that due to Davis's spoliation of the evidence, the trial court as finder of fact should rule that the movie was on Davis's hard drive at the time of the alleged infringement.

Issue(s): With respect to Paramount's claim of spoliation and request for sanctions, the trial court identified several issues:

1. Was Davis at fault for erasing his hard drive?
2. Did the erasure prejudice Paramount?; and
3. What should be the appropriate remedy?

Ruling: The trial court made the following rulings:

1. Davis was at fault for wiping his hard drive.
2. Yes, Paramount was prejudiced by Davis's action.
3. The trial court declined to impose specific sanctions, but said that as the finder of fact, it would take Davis's destruction of the hard drive data into consideration at the time of the trial.

Rationale:

1. Having received notice of the investigation into his Internet activities from his ISP, Davis should have known or foreseen that the contents of his hard drive would be relevant, and he should have preserved them.
   
   
2. Following the erasure of the hard drive, it was no longer possible for Paramount to determine if its property or the peer-to-peer software was on Davis's computer at the time of the alleged infringement.
   
   
3. The issue of Davis's spoliation arose in the context of cross-motions for summary judgment. The court identified several critical issues of fact to be determined, including whether Davis did engage in infringing behavior, whether he was a so-called "first propagator" (original infringer of Paramount's copyright), and whether he was misidentified during the course of the investigation. In light of those issues, the court denied the motions for summary judgment, but said that the wiping of the hard drive would be considered during the trial.