Case Summary: Bunnell; Terminating Sanctions and Default Judgment appropriate for Willful, Systemic Spoliation

In this copyright infringement case, the court held that terminating sanctions and the entry of default judgment in favor of the requesting party was appropriate the court found:

• User forum postings had been systematically reviewed for the purpose of modifying or deleting those which referred to acts associated with copyright infringement;
• Directory headings where copyrighted content was stored was changed from specific names of television shows to more generalized names (e.g., “TV-Unsorted”).
• Evidence suggested that [Producing Party] may have failed to produce previously existing, unaltered versions of these directories.
• Producing Party failed to produce, and claimed not to possess, the full IP addresses related to clients downloading works protected by copyright laws, where evidence suggested that the party did in fact have this information.
• Producing party failed to produce names of forum moderators, as required.

Columbia Pictures Inc. v. Bunnell, No. 2:06-cv-01093 (C.D. Cal. Dec. 13, 2007) (Order Granting Plaintiffs’ Motion for Terminating Sanctions)

Case Blurb: Bunnell; Deleting and modifying user forum postings constitutes willful spoliation

[Requesting Parties] claim that [Producing Parties] responded to the filing of this lawsuit with a plan to delete and modify “hundreds or thousands” of postings on [Producing Party's] forums whose content included references to copyright infringement (the issue in the case).

Forum postings were modified to replace the names of copyrighted works with, for example, “[some movie 1]” and “[some movie 2].” Two forum threads were deleted entirely: a thread on how to “crack” or bypass the copyright security on electronic games and a glossary of terms like CAM, TS, DVDSCR, and Telecine (terms referring to methods of copying content).

This process was implemented to “clean up” the site in response to the lawsuit, with an eye to avoiding future complaints of copyright infringement. [Producing Party] claims that it assumed [Requesting Party] had already seen the existing forum postings. Thus, its intention was not to destroy evidence but to “steer clear of anything related to piracy.” This contention is simply not believable. The destruction of evidence clearly relevant on the issue of copyright infringement cannot be justified by the assumption that it’s already been viewed by [Requesting Party].

Most piracy-related threads were closed and removed from public view, leaving their content intact, rather than modified.

Vbulletin, the software [Producing Party] uses to operate the forums, “does not save material which has been edited from the post.”

Columbia Pictures Inc. v. Bunnell, No. 2:06-cv-01093 (C.D. Cal. Dec. 13, 2007) (Order Granting Plaintiffs’ Motion for Terminating Sanctions)