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Archive for the ‘W.D. Tex.’ Category

Case Summary: Tschirhart; Court grants a default judgment to plaintiff after finding defendant deliberately destroyed evidence

Posted by rjbiii on September 6, 2007

In a trial concerning copyright infringement by the user of peer-to-peer systems, the court granted plaintiff recording company a default judgment against defendant, concluding that defendant deliberately destroyed the evidence, music files that had resided on the hard drive of her computer, in bad faith. A forensics expert found that defendant had “wiped” the hard drive after notice of litigation and again after the court ordered defendant to produce the computer for a forensic examination. Defendant, while not disputing the deletion operations occurred, claimed that they occurred as a part of automated defragmentation operations. The court was not convinced. In addition to a finding of bad faith, the court also found that the three elements required by the Fifth Circuit to dismiss the case had been established. Specifically, the court concluded that: (1) the destruction of evidence was attributable to the client and not the attorney; (2) the destruction caused substantial prejudice to the opposing party; and (3) a less drastic sanction was not appropriate. The plaintiff’s motion for terminating sanctions was granted, while defendant was ordered to pay the amount of the costs and fees relating to the filing of the motion. Arista Records LLC v. Tschirhart, 241 F.R.D. 462 (W.D. Tex. 2006).

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Posted in 5th Circuit, Case Summary, Computer Forensics, Data Management, Default Judgment, Document Retention, Duty to Preserve, Judge Orlando L. Garcia, Sanctions, W.D. Tex. | Leave a Comment »

Case Blurb: Tschirhart; Factors to examine before dismissing a case, 5th Circuit

Posted by rjbiii on September 4, 2007

To support the severest sanctions under Rule 37(b)-striking pleadings or dismissing a case-the Fifth Circuit has usually required a finding of bad faith or willful conduct. Arista Records LLC v. Delina Tschirhart, 241 F.R.D. 462 (W.D. Tex.) (citing Pressey v. Patterson, 898 F.2d 1018, 1021 (5th Cir. 1990)).
When a defendant demonstrates flagrant bad faith and callous disregard of its responsibilities, the district court’s choice of the extreme sanction is not an abuse of discretion. Id. (citing Emerick v. Fenick Industries, Inc., 539 F.2d 1379, 1380 (5th Cir. 1976)).
The Fifth Circuit has specifically required, in addition to a finding of bad faith, several factors which must be present prior to dismissing a case for violating a discovery order. Those factors include:

  • The violation must be attributable to the client instead of the attorney;
  • The misconduct must cause substantial prejudice to the opposing party; and
  • A finding that less drastic sanctions would not be appropriate. To support the severest sanctions under Rule 37(b)-striking pleadings or dismissing a case-the Fifth Circuit has usually required a finding of bad faith or willful conduct.

Id. (citing FDIC v. Connor, 20 F.3d 1376, 1380-81 (5th Cir. 1990)).

Posted in 5th Circuit, Case Blurbs, Judge Orlando L. Garcia, Sanctions, Spoliation, W.D. Tex. | Leave a Comment »