Post Process

Everything to do with E-discovery & ESI

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

Posted by rjbiii on March 9, 2008

[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)

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