Despite Intentional Spoliation, $25 Million Verdict Stands
BMG Rights Mgmt. LLC v. Cox Commc’ns, Inc., —F. Supp. 3d—, 2016 WL 4224964 (E.D. Va. Aug. 8, 2016)
In this copyright infringement case, Plaintiff was found to have intentionally spoliated material evidence, resulting in sanctions. Specifically, Defendant was allowed to address the issue of spoliation in its opening statement and the jury was instructed that it may, but was not required to, consider “the absence” of earlier versions of source code relied upon by Plaintiff’s agent to identify and provide notice of infringement by Defendant’s customers. Despite the sanctions, Plaintiff was awarded $25 million upon the jury’s determination that Defendant—a conduit internet service provider—was liable for willful contributory infringement of Plaintiff’s copyrighted musical works. In a motion for a new trial, Defendant argued, among other things, that the sanctions were insufficient. The district judge rejected that argument (and others), denied the motion, and entered final judgement in accordance with the verdict.