Some of you may have seen the recent article on Freezenet where Malibu Media took a hit on its attempt to obtain a default judgement and sanctions for spoliation of evidence against Michael Harrison, case # 1:12-cv-01117 (IN). This is an older Malibu Media case that was originally filed on 14 Aug 2012, against 11 John Does. I have a few posts on the Harrison case and will not go into too much background here.
Suffice it to say that Mr. Harrison had Two computer systems: One gaming system and One general purpose laptop. Mr. Harrison was notified of the law suit and subpoena for his ISP subscriber information by COMCAST in October 2012. At that time, the hard drive in Mr. Harrison’s gaming system was having performance issues (to include crashing) and Mr. Harrison replaced it in the January 2013 time-frame. In February 2013 the old hard drive was sent to GGI Recycling LLC as scrap (destroyed). After finding out this fact (Mr. Harrison was deposed on 7 Aug 14), Troll/Plaintiff filed a motion for sanctions against Mr. Harrison for destroying evidence (the hard drive). Note: On 25 Jul 13, Troll/Plaintiff was provided copies of Mr. Harrison’s computer hard drives. On 24 Dec 14, the court issued its Report and Recommendation on Plaintiff’s Motion for Sanctions. Doc_294_RandR_NoSanctions_01117(IN)
Two Factors For Sanctions – Duty To Preserve & Bad Faith
By simply looking at the above dates, it doesn’t look good for Mr. Harrison. But wait… The court said there were Two key points to determining if sanctions for spoliation were warranted.
- Did Mr. Harrison have a duty to preserve the hard drive as evidence? YES
- Did Mr. Harrison destroy the hard drive (evidence) in bad faith, wilfulness, or at fault? NO
The duty to preserve the hard drive as evidence was established when Mr. Harrison first received notification from COMCAST in October 2012. What Mr. Harrison should have done was secure the hard drive for possible examination by Troll/Plaintiff’s expert at a later date. Mistakes happen and this goes to show you how this Troll/Plaintiff will try to bend facts to their advantage.
“…Plaintiff asks the Court to enter default judgment against Defendant, [id. at 7], or “at minimum,” issue “an adverse inference instruction requiring the jury to infer that Plaintiff would have found its copyrighted movies on the destroyed drive.”
Troll/Plaintiff had the gall to ask the court to instruct a potential jury that Plaintiff’s movie WAS on the destroyed hard drive. No facts support such a stupid request and the thankfully the court got to the heart of the matter.
The court conducted an evidentiary hearing and based off all of the evidence, could not find anything to show bad faith from Mr. Harrison.
- Mr. Harrison destroyed the hard drive approx. five months after he was notified by the ISP of the law suit. The judge concluded that a person wanting to destroy adverse evidence would likely not wait that long to do so.
- Troll/Plaintiff did not serve Mr. Harrison with its amended complaint until April 2013 (after the hard drive was destroyed). Mr. Harrison testified that until he was served in April 2013, he was unaware that “He” personally was being sued. The judge said this fact makes it less likely that Mr. Harrison was trying to destroy evidence. Note: I also loved the following footnote in which the judge tell Troll/Plaintiff that they screwed up by not following his orders.
The Court notes that its previous order, [Dkt. 18], stated that “[w]ithin seven days of the identification through discovery or otherwise of any putative Defendant, Plaintiff shall file an Amended Complaint naming that Defendant and shall undertake immediate efforts to effect service of process upon that Defendant.” [Id. ¶ 4.] Had Plaintiff complied with the Court’s order and “immediately” undertaken efforts to serve its amended complaint on Harrison, Plaintiff’s current motion for sanctions would rest on firmer ground: in such a case, Defendant’s destruction of the hard drive would have occurred after service of the amended complaint, and it would be much easier for the Court to infer that Defendant’s conduct was an attempt to hide information that could have been adverse to Defendant in the present litigation. As it is, however, Plaintiff did not serve Harrison for approximately five months after mending its complaint, and thus cannot benefit from such an inference.
- The purchase of the replacement hard drive by Mr. Harrison’s friend (Mr. Harlan) is not suspicious or indicates bad faith. Mr. Harlan owed Mr. Harrison some money and he (Mr. Harrison) ask Mr. Harlan to purchase the replacement hard drive for him. Mr. Harlan testified to this fact and corroborated the explanation. The court felt that if Mr. Harrison wanted to hide the fact that the hard drive was replaced, he would not have disclosed this fact or provided a copy of the receipt for purchase by Mr. Harlan.
- Mr. Harrison testified that he used the gaming computer to play on-line games and very light Internet usage, such as Facebook. He stated that the gaming computer never had BitTorrent installed on it. He further stated the laptop was used to run other applications, to include BitTorrent. Note: Plaintiff’s movies were not found on the laptop computer. The court also found Mr. Harrison’s statement concerning the gaming computer usage to be credible.
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.
Relevance Of Destruction At Trial
The court did say the fact that Mr. Harrison destroyed the hard drive from the gaming computer could be relevant at trial. Not that I think Troll/Plaintiff wants to risk a trial on this one. So Troll/Plaintiff can use this fact to show why finding no evidence on the gaming computer does not exonerate Mr. Harrison.
So what Troll/Plaintiff is left with is no direct evidence to show that Mr. Harrison downloaded/shared Plaintiff’s movie. They also CANNOT claim spoliation following the court’s report and recommendation. I bet Troll Lipscomb is wishing they didn’t make the motion for sanctions. I can only see them clinging to the fact that Mr. Harrison did run BitTorrent on his laptop and there were various files downloaded/shared from it. They could try to use these BitTorrent files to support their view that Mr. Harrison could have done this. Note: I haven’t seen anything to suggest that Troll/Plaintiff is claiming the other non-Malibu Media/X-Art files (Exhibit “C”/Expanded Surveillance) shared via Mr. Harrison’s IP address (via BitTorrent) somehow are tied back to him. As Mr. Harrison has no problem with providing testimony and the court found him credible, the best Troll/Plaintiff can do is “Hope” a jury would have a different opinion of Mr. Harrison’s testimony. That or Troll/Plaintiff may be deluding themselves that they can put on a dazzling show that is bound to impress.
So I expect Troll/Plaintiff will be looking for some way to extricate itself from this case. Simply agreeing to pay Mr. Harrison’s legal bills (via a confidential agreement) is always a possibility, but the cost of Mr. Quearry’s efforts may be hefty. This case is similar to the Butler case in Colorado, where the computer in question was not available for examination. Note: No motions for spoliation were made in the Butler case. A settlement was reached just before Troll/Plaintiff’s expert was required to provide his report. The exact details of the settlement are unknown.