February 2009 – Page 2 – Electronic Discovery Law

Rejecting Arguments Regarding “Transitory Nature” of Data and Server Limitations, Court Finds Defendants Failed to Preserve Evidence in Bad Faith, Orders Adverse Inference and other Sanctions

Feb 05 2009

Arista Records, LLC v. Usenet.com Inc., 2009 WL 185992 (S.D.N.Y. Jan. 26, 2009)

Upon finding that defendants acted in bad faith to deliberately destroy relevant evidence despite a duty to preserve, the court imposed severe sanctions.

Defendant Usenet.com, operated by defendant Gerald Reynolds, is a commercial Usenet provider. Usenet is a “network of loosely connected computer servers that share message traffic for discussions.” Users are able to upload content to the system and download content from other users’ postings. Postings to Usenet are known as “articles.” “Articles” are organized into “newsgroups” – including Music Groups. In this case, “Plaintiffs contend that Defendants provided their subscribers access to hundreds of music piracy newsgroups containing vast amounts of infringing digital music files copyrighted by Plaintiffs.”

Despite Protection of Marital Privilege from Email’s Admission “in Judicial or Grand Jury Proceedings,” Court Finds Email may be Admitted for Other Purposes and Denies Motion to Suppress

Feb 03 2009

U.S. v. Nicholas, 594 F. Supp. 2d 1116 (C.D. Cal. 2008)

In this case, the United States District Court in the Central District of California denied defendant Henry Nicholas’s motion to block the production of an incriminating email and for an order preventing the use of the email for cross examination or impeachment should Nicholas testify. Rejecting Nicholas’s argument that the email was protected from disclosure by marital privilege, the district court held that a Ninth Circuit ruling that the email was subject to some protection by the marital privilege did not preclude all potential use of the email. Accordingly the district court held that because the email could constitute the admission of a co-conspirator and be admissible at trial under other limited circumstances, it must be disclosed to Nicholas’s co-defendant.

Archive - February 2009