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Lemony Snicket's: Spoiliation Sanctions [07 Jan 2006|01:36pm]

I have a lot of questions about how the RIAA and MPAA lawsuits actually proceed. This curiosity is mainly akin to the rubber-neck traffic phenomenon.

One question I have is, why don't people just wipe their hard drives once they've been notified? There may still be evidence of having possessed some files, but it seems like in many situations this would significantly weaken the prosecution's case.

Well, here's one reason; a District Court judge ruling in a case involving Lemony Snicket's: A Series Of Unfortunate Events that the defendant (Davis) should be subject to "spoiliation sanctions" because he wiped his hard drive. Here's the PDF opinion.

At least the judge rejected Paramount's summary judgment request, which was made on the basis that Davis's wiping of the drive (before Paramount named it as evidence) proved his possession of the files. But he promises to apply the sanctions at trial.

It's an interesting legal question, anyway. Davis provided a reason why he needed to erase the hard drive; because he was getting ready to sell the computer to someone. But the court said that he should have still preserved the computer's "memory" [sic].

So was this destroying evidence and something that should be sanctioned? Or should Paramount have filed a proper subpoena? Could they have?

There should certainly be a limit on how much a suit should be able to hold your life hostage. Taken to the extreme, you wouldn't be able to alter anything on the hard drive in question at all, because temporary files (for example) stored on it might turn out to be evidence. To what degree is an accused person responsible for guessing what might be evidence against them in a suit? I kind of thought that this is why we had subpoenas to begin with.

It's probably a better idea to delete the selected files than to wipe the whole drive, assuming you can delete them in such a way that they could not be recovered without spending more money than Paramount would want to spend. I wonder what the judge would say in that case. Have there been opinions addressing this?

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