“The truth cannot be uncovered if information is not preserved.” - p. 56

The Plaintiff brought an action against the Defendant for copyright infringement. The Plaintiff obtained numerous production orders, where the Court explicitly reminded the Defendant of its duty to retain all relevant materials, including Electronically Stored Information (ESI).

However, the Defendant did not comply with these requests and orders, but instead made eight discrete preservation failures, including

  • Failing to implement a litigation hold
  • Attempted to delete over 5,000 files
  • Deleted, in total, over 13,000 files from his work computer “on the eve of a discovery hearing and only days before a scheduled imaging of his work computer’s contents
  • Failed to take reasonable measures to prevent potentially relevant data stored on its computer systems from being modified, overwritten, or deleted
  • Used Disk Cleanup, Disk Defragmenter, Easy Cleaner and CC Cleaner to permanently remove files from his computer
  • Did not disclose the existence of an External Hard Drive (EHD) to their ESI litigation consultant

The Plaintiff now brought a motion for default judgment. In response, the Defendant recognized the seriousness of its actions and consented to the entry of a default judgment. In accepting their plea, Chief United States Magistrate Judge Paul W. Grimm determined that the Defendant’s “pervasive and wilful violation of serial Court orders to preserve and produce ESI evidence” amounted to contempt of court, and ordered that the Defendant “be imprisoned for a period not to exceed two years, unless and until he pays to Plaintiff the attorney’s fees and costs that will be awarded to Plaintiff as the prevailing party.”

However, the Court did not make a judgment as to monetary damages, aside from costs and legal fees allocable to spoliation, holding the Plaintiff to strict proof thereof at trial. Finally, Justice Grimm was not willing to bring perjury or other criminal charges against the Defendant, although he had “given serious thought to doing this.”