Malibu Media Dealt With Setback in File-Sharing Case Drew Wilson | January 1, 2015 Malibu Media was dealt with a setback in a file-sharing lawsuit against an alleged file-sharer. It was an interesting case where the defendant said that the hard drive failed and it had to be replaced. Malibu Media claimed that this act alone constituted destruction of evidence. The court disagreed with the assessment and denied their motion. There was an interesting development in one of the many file-sharing lawsuits filed by Malibu Media, a pornography company. In the MALIBU MEDIA, LLC v. Harrison case (Reference: Dist. Court, SD Indiana 2014. No. 1:12-cv-01117-WTL-MJD.), magistrate judge Mark J. Dinsmore recommended that Malibu’s “Motion for Sanctions Against Defendant for the Intentional Destruction of Material Evidence” be denied. Court documents obtained by Freezenet details the very interesting set of circumstances that led to this. Malibu media accused a number of alleged file-sharers of copyright infringement over the work “Pretty Back Door Baby” on the BitTorrent protocol back in 2012. The plaintiffs demanded the storage devices in the defendants possession for the purpose of collecting evidence: Plaintiff’s Request for Production No. 1 asked for a “complete copy of the hard drive for each of the Computer Devices in [Defendant’s] house, apartment or dwelling.” […] Defendant responded that Plaintiff “was provided a complete copy of the hard drive for each of [his] computer devices on July 25, 2013.” […] At his deposition, Defendant testified about the drive that he had provided from his gaming computer. He stated that the hard drives in his computers “get used pretty hard and die pretty quickly,” such that he “replaced hard drives a lot in all of [his] computers.” […] In January 2013, for instance, the hard drive in Defendant’s gaming computer “had begun crashing,” and “it needed to be replaced.” […] Thus, Defendant replaced the drive shortly thereafter. Apparently, the replacement drive was paid for by someone else. The defendant said that this other individual owed him money for car parts and that the hard drive would be sufficient. The plaintiffs wanted to know what happened to the old drive and the defendant explained that the drive was taken to recycling where it would be melted down. These events led up to the motion by the plaintiffs. The plaintiffs motion was “Sanctions Against Defendant for the Intentional Destruction of Material Evidence”. Court documents continue, “Plaintiff contends that Defendant received notice of this lawsuit in October 2012 through the letter from Comcast […], and that the hard drive that Defendant replaced in early 2013 could have “contained evidence of Plaintiff’s copyrighted works.” […] Thus, Plaintiff argues that Defendant’s recycling of the hard drive violated Plaintiff’s duty to preserve evidence relevant to this litigation. […] Plaintiff also contends that Defendant tried to conceal his alleged wrongdoing: Plaintiff notes that its Requests for Production instructed Defendant to disclose the existence of and circumstances surrounding the destruction of any hard drives that Defendant had used but that Defendant no longer had in his possession. […] Defendant, however, allegedly did not reveal the existence of the hard drive he replaced in early 2013 until his August 2014 deposition, several months after he responded to Plaintiff’s requests for production.” The court took the motion under advisement and conducted a hearing. That was where Malibu’s case began to fall apart: Plaintiff in this case seeks imposition of sanctions for spoliation of evidence resulting from the destruction of Defendant’s hard drive. […] The Seventh Circuit notes that “courts have found a spoliation sanction to be proper only where a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent.” […] (observing that plaintiff “fail[ed] every element of the test for the spoliation inference” where evidence was destroyed “before [defendant] knew or should have known that litigation was imminent”). Furthermore, a showing of “bad faith” is “a prerequisite to imposing sanctions for the destruction of evidence.” […] “`[B]ad faith’ means destruction for the purpose of hiding adverse information.” […] (“A party destroys a document in bad faith when it does so for the purpose of hiding adverse information.”). Sanctions for spoliation therefore may not be imposed simply because evidence was destroyed; instead, such sanctions are appropriate only if the evidence was destroyed for the purpose of hiding adverse information. […] (“[T]he crucial element is not that evidence was destroyed but rather the reason for the destruction.”). The movant bears the burden to make this showing. Later on, a critical blow to the plaintiffs motion: Defendant received notice of this lawsuit at the beginning of October 2012. […] Defendant, however, did not destroy the hard drive until “late February 2013.” […] Thus, almost five months passed between the time that Defendant learned of the lawsuit and Defendant’s destruction of the hard drive. Had Defendant truly wished to hide adverse information, the Court finds it unlikely that Defendant would have waited nearly five months to destroy such information. Instead, Defendant’s continued use of the hard drive for the months after he learned of the litigation suggests that the hard drive contained no information to hide at all, or that Defendant did not intend to hide any such information. The timing of Plaintiff’s amendment and the service of its complaint also detract from an inference of bad faith. Plaintiff amended its complaint to add Harrison as a Defendant on November 9, 2012. […] Plaintiff, however, did not serve the amended complaint on Harrison until April 2013, […], after Defendant had arranged to order the replacement hard drive, […], and after the recycling of Defendant’s hard drive. […] Furthermore, Defendant testified that the service of the complaint was the first time that he became aware that he was personally being sued for copyright infringement. […] Thus, at the time of the destruction in February 2013, Defendant was not even certain he had been sued, making it much less likely that he destroyed the hard drive to hide information that could prove damaging in this litigation. Next, the circumstances of Defendant’s purchase of the replacement hard drive are not as suspicious as Plaintiff contends. Plaintiff notes that Defendant had a third party purchase the new hard drive for him and implies that Defendant did so to hide the existence of his original hard drive. […] As noted above, however, Defendant explained the circumstances of the third party’s purchase and gave a legitimate reason—repayment of the loan—for Harlan’s purchase of the hard drive. Furthermore, Mr. Harlan testified that he did in fact purchase the hard drive because he owed Defendant money, and agreed that the original loan had been for parts for Harlan’s car. […] Harlan’s testimony thus corroborates Defendant’s explanation for Harlan’s purchase of the drive, making it less likely that the purchase was part of a plan to hide adverse information. Moreover, Plaintiff’s First Request for Production of Documents asked Defendant to produce “[a]ll documents referring, relating to or comprising records associated with the purchase of a Computer Drive.” […] Defendant responded by attaching a copy of the receipt showing the purchase of the hard drive by John Harlan. […] The Court finds unlikely that Defendant would have produced the receipt showing the purchase of the hard drive had Defendant wished to hide the purchase of the replacement hard drive. Defendant’s disclosure of this receipt thus further erodes the strength of any inference that Defendant was attempting to hide adverse information. After analyzing a large number of facts of the case, the court struck the blow to Malibu’s motion: For these reasons, then, the Court concludes that Defendant did not destroy the hard drive in bad faith. No direct testimony establishes that Defendant did so, and the circumstances of the destruction as outlined above do no warrant an inference that Defendant destroyed the hard drive for the purpose of hiding adverse information. As such, Plaintiff has not carried its burden to prove bad faith destruction of evidence, and Plaintiff’s motion for sanctions is DENIED. A number of other elements the plaintiff filed was also shot down in court as well. In short, there was no evidence to suggest that the destroyed drive was even involved in the alleged acts of copyright infringement. The court also found that there was no conspiracy to destroy evidence. The hard drive simply failed and needed replacing. The defendant had no real way of knowing that particular hard drive was to be preserved in court. The court also sided with the defendant that the drive wasn’t even used for the purposes of using BitTorrent in the first place. So, it just sounds like the plaintiff was simply barking up the wrong tree on this one as far as the court was concerned. It’s hard to see this as anything other then a self-inflicted setback for Malibu. It’s hard to say where this case goes from here. We’ll be happy to report on any developments if we find anything. Drew Wilson on Twitter: @icecube85 and Google+.