Geeks behaving badly: USENET spoliation
Geekdom gets its Zubulake in the Arista Records copyright fight with USENET.
Zubulake was the wake up call to the general bar because for the first time, very public consequences attached to not preserving or producing electronic data.
USENET and its progeny, open source communities, often work outside the normal legal and copyright conventions. Here, a clear cultural issue emerged when technology was used to avoid consequences in the probable belief that the law was too slow and behind the times to do anything about it.
Dead wrong. Not in NY, coincidentally, the same place Zubulake was decided.
One of the contributors to Carole Basri’s and my treatise, Ediscovery for Corporate Counsel, Chris Boehning and his colleague, Daniel J. Toal lay out the situation in Spoliation Leads to Severe Sanctions.
USENET, like ISP’s, had a great defense against copyright infringement for the acts of others on their systems. It shot itself in the foot technically and was unable to use that defense legally, resulting in a relatively easy victory for the record company.
…the plaintiffs presented evidence that, on the same day that defense counsel agreed to produce the requested data, Usenet disabled user access to its services without preserving the Usage Data, and also reconfigured its server to delete and overwrite the existing Digital Music Files, thereby rendering this data irretrievable.
Katz [the judge] rejected Usenet’s arguments that it had neither the duty nor the ability to preserve the data at issue, finding clear evidence that Usenet had actual notice of Arista’s request for the data and that Usenet subsequently produced “great volumes” of the same data it claimed could not reasonably be preserved.
Upon a further finding that Usenet destroyed evidence that was “highly relevant” and did so in bad faith, Katz determined that such conduct justified the imposition of sanctions.
The romp continues:
At the close of discovery, Arista alleged that Usenet “wiped clean” seven of its former employees’ hard drives without backing up or preserving the data in any manner and engaged in other forms of litigation misconduct, such as providing false and misleading responses to discovery requests and interrogatories, causing their employees to evade depositions by sending them on expense-paid vacations, and violating two court orders compelling defendants to remedy their deficient production.
….
[The judge] held that the appropriate sanction was to preclude Usenet from asserting an affirmative defense under the safe harbor provision of the Digital Millennium Copyright Act, an argument on which they substantially relied in defending against the claims of Arista.
Arista Records LLC v. Usenet.com, 2009 WL 1873589 (S.D.N.Y. June 30, 2009)
Filed under Sound Evidence, Technology Counsel.