eDiscovery Daily Blog

• July 15, 2015

Remember the Malibu Media, LLC v. Tashiro case that we covered a couple of weeks ago, which involved spoliation sanctions against a couple accused of downloading its copyrighted adult movies via a BitTorrent client?  Here’s a similar case with the same plaintiff and similar spoliation claims, but with a somewhat different outcome (at least for now).

In Malibu Media, LLC v. Michael Harrison, Case No. 12-cv-1117 (S.D. Ind. June 8, 2015), Indiana District Judge William T. Lawrence denied the plaintiff’s motion for summary judgment, upholding the magistrate judge’s ruling which found an adverse inference instruction for destroying a hard drive with potentially responsive data on it to be not warranted, and ruled that “it will be for a jury to decide” if such a sanction is appropriate.

Case Background

The plaintiff alleged that the defendant installed a BitTorrent Client onto his computer and then went to a torrent site to upload and download its copyrighted Work, specifically, six adult films (or portions thereof).  As in the Tashiro case, the plaintiff used a German company to identify certain IP addresses that were being used to distribute the plaintiff’s copyrighted movies, and the defendant was eventually identified by Comcast as the subscriber assigned to this particular IP address.

After the lawsuit was filed, in January 2013, the defendant’s hard drive on his custom-built gaming computer crashed and he took it to an electronics recycling company, to have it “melted”. He then replaced the gaming computer’s hard drive. In addition to his gaming computer, the defendant also had another laptop. During discovery, that laptop and the new hard drive were examined by forensic experts; while the laptop revealed extensive BitTorrent use, it did not contain any of the plaintiff’s movies or files and the new hard drive did not reveal any evidence of BitTorrent use.  Nonetheless, because of the destroyed hard drive, the plaintiff filed a motion for sanctions for the Intentional Destruction of Material Evidence, as well as a motion for summary judgment.

In an evidentiary hearing in December 2014, the magistrate judge recommended that the motion for sanctions be denied, concluding that the defendant “did not destroy the hard drive in bad faith”, that “[h]ad [Harrison] truly wished to hid adverse information, the Court finds it unlikely that [Harrison] would have waited nearly five months to destroy such information” and noted that he found the defendant’s testimony to be credible.  The plaintiff filed an objection to that report and recommendation, arguing that “bad faith should be inferred from the undisputed evidence.”

Judge’s Ruling

Regarding both the summary judgment motion and the motion for sanctions, Judge Lawrence stated the following:

“The Court agrees with Magistrate Judge Dinsmore that default judgment was not warranted in this case. That said, Magistrate Judge Dinsmore found an adverse inference not to be warranted because he found Harrison’s testimony to be credible. While the Court does not necessarily disagree with Magistrate Judge Dinsmore—in that it is certainly possible a jury would find Harrison’s testimony to be credible—ultimately, the Court believes this is an issue best left for a jury to decide. Malibu Media has presented sufficient evidence to the contrary, and in light of the fact that Malibu Media’s motion for summary judgment was denied on the same grounds, the Court believes leaving the issue of spoliation to the jury to be the best approach. Accordingly, at trial the Court will instruct the jury that if it finds that Harrison destroyed the gaming computer’s hard drive in bad faith, it can assume that the evidence on the gaming computer’s hard drive would have been unfavorable to Harrison.”

So, what do you think?  Should this case have been handled the same way the Malibu Media, LLC v. Tashiro case was handled?  Please share any comments you might have or if you’d like to know more about a particular topic.

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