The Recoverability of Files Is Irrelevant to Imposition of Sanctions

Malibu Media, LLC v. Tashiro, No. 1:13-cv-00205-WTL-MJD, 2015 WL 2371597 (S.D. Ind. May 18, 2015).

In this copyright infringement dispute involving the illegal download of adult movies, the court granted the plaintiff’s motion for a default judgment as the result of the defendants’ spoliation and perjury.

The spoliation claim rested on the deletion of computer files and the failure to identify and produce a hard drive during discovery. During discovery, the defendants shared four hard drives for forensic imaging. One hard drive revealed that “numerous files and folders” were deleted the night before the defendants turned over the drive. Malibu’s expert determined that the deleted content related to the downloading of adult movies through a BitTorrent client, some of which could have been Malibu’s copyrighted content. The defendants’ expert found no evidence that any deleted files related to Malibu.

During her deposition and in her interrogatory responses, the wife, Kelley Tashiro, denied that she searched for Malibu’s website or that she had heard of BitTorrent before the litigation. She also failed to produce seven Digital Millennium Copyright Act (DMCA) violation notices that she had received from her Internet provider. However, her husband, Charles, admitted that he used BitTorrent—but just to download music—and had visited Malibu’s website. Months later, he finally admitted using BitTorrent to download adult movies.

The court found both defendants had a duty to preserve evidence when they deleted files from their hard drives. Kelley was a defendant at the time, though Charles was not. However, he should have known that litigation was imminent. He saw the complaint and its allegations, received the Comcast DMCA notices, and provided the responses to Malibu’s discovery requests to Kelley.

In addition, the court found the defendants acted in bad faith. Although Charles took the Fifth Amendment at a hearing and there was no “explicit testimony” at the hearing to confirm his bad faith in deleting the files, the court inferred the required state of mind from the circumstances: Charles had a strong motive to delete the files, Charles’s taking of the Fifth suggested liability, and Malibu’s expert found that movies were downloaded by someone with the Tashiros’ IP address. Furthermore, the timing of the deletion of the files, most of which were associated with BitTorrent use, “could hardly be more damning.”

The defendants argued that spoliation did not occur because the deleted files were recoverable. The defendant’s expert suggested the files were “marked as deleted” but “still ‘fully accessible and not destroyed.’” The court believed Malibu’s expert, who testified that thousands of files were lost, and found that even if the files were recoverable, it would not absolve Charles of liability, as it could have altered their metadata. And, “[b]y attempting to hide or destroy evidence, Defendant Charles attempted to work a fraud on this Court, obstruct plaintiff’s pursuit of its case, and subvert the judicial process.” Therefore, his conduct threatened the “‘integrity and credibility of the civil justice system’” and the general principles underlying discovery. The court attributed Charles’s behavior to Kelley, making her equally liable for the spoliation, because she turned discovery over to him and failed to investigate whether her responses to Malibu’s discovery requests were complete and accurate.

As for the claims of perjury, the court found Kelley’s omissions relating to the hard drive and DMCA notices amounted to an “egregious failure to reasonably investigate” or “knowing and intentional” perjury—either way, the court found her behavior merited sanctions. It also ruled that Charles perjured himself during his deposition.

The court concluded a default judgment was appropriate given the “clear” harm to both Malibu and “the judicial system as a whole.” No “sanction short of default” would deter or punish the behavior at issue in this case, which made “a mockery of the judicial process.”

Read the full case:

Malibu Media, LLC v. Tashiro, No. 1:13-cv-00205-WTL-MJD, 2015 WL 2371597 (S.D. Ind. May 18, 2015).


As this case reveals, the underlying intent of deletion—flouting the discovery rules and confounding the opposing party—is sufficient to merit sanctions, regardless of whether any lost files are recoverable. The conduct itself is sanctionable, and parties should not be able to rely on forensic experts to bail them out in the event that their wrongdoing is discovered.

This case also emphasizes the need for parties and their counsel to ensure discovery is complete and correct. Here, the defendants’ attorney narrowly escaped sanctions under the assumption that he may have been “a victim of his clients’ deceit,” but he clearly failed to fulfill his duty in confirming the accuracy of his clients’ discovery responses.