Destroyed Evidence?

[Lamron]

This is interesting.

Los Angeles - Due to an accused file-swapper's actions to uninstall file-sharing software and reformat his hard drive, a federal judge has found he willfully destroyed evidence and is now subject to relevant sanctions, Ars Technica reported. Defendant Jeffrey Howell previously won a major victory in the case (Atlantic v. Howell), when Judge Neil V. Wake rejected the label's argument that his simply "making available" of songs in a shared folder on the Kazaa application constituted copyright infringement.

After this setback, the label filed a motion seeking summary judgment, as Howell was said to have destroyed evidence on multiple occasions after receiving a pre-litigation settlement letter from the label.

Howell was found by RIAA forensic investigators to have "uninstalled KaZaA and deleted everything in the shared folder, reformatted his hard drive, downloaded and used a file-wiping program, and then nuked all the KaZaA logs on his PC," according to Ars Technica.

"Defendant's intentional spoliation of computer evidence significantly prejudices Plaintiffs because it puts the most relevant evidence of their claim permanently beyond their reach," the label argued.

Judge Wake is now soon expected to rule on the amount damages Howell will have to pay.

Apparently, after being notified of the potential suit against him, the defendant deleted everything. Now the judge says that doing so was destroying evidence. But wouldn't requiring the defendant to give the plaintiff the hard drives amount to forcing him incriminate himself? (note that this is not a criminal case, and so there was no search warrant) Shouldn't the plaintiff have to prove their case solely on the evidence already in their possession? Otherwise, they are admitting that they don't have sufficient evidence and are asking the court to invade the privacy of a person for a fishing trip to look for evidence.

There's also the question of whether the letter from the plaintiff to the defendant asking him not to delete things they wanted to see actually has any legal weight. They are treating it as if it was a court issued injunction against that action.

What do you think? Is the judge right?

Would you destroy evidence related to litigation against you if you were notified before receiving actual court orders not to?

[Death's Shadow]

Hell yeah I would dump it too. And I think the judge is dead wrong and he will win in a appeal. His constitutional rights guarantee his rights against self incrimination, and illegal search.

[vinsanity]

Honestly, a crime is a crime. In this case however any half competent defense attorney would win him an aquittal. I state this on the basis that the label sent him a cease and desist letter regarding his illegal downloads. In response, the offender did as the letter demanded, and he deleted the illegally downloaded music as well as the software bneeded to obtain them. He even went an extra step to format the hard drive to ensure that the label's demand was respected. So how then can he be accused of destroying evidence when he was asked to stop taking illegal downloads?. If the cheap bastid had been smart he would have simply REPLACED the hard drive.

[RedRock]

Destroying evidence of a crime is a crime. Yes, in a criminal case, you don't have to testify against yourself, unless you have been given immunity, but this was a civil case, and litigants in such a case have extra-ordinarily broad powers to force you to give up dirt on yourself, including court-orders NOT TO ERASE OR DESTROY PERSONAL RECORDS AND POSSESSIONS, ETC.

I read from the above that he didn't simply follow the c & d letter when it was received but apparently REPEATEDLY was doing the downloads and then erasing the evidence right before any possible inspections of his hard disk.

He skirted the law and ignored the intention of the law, believing he could get away with it due to erasingS of the hard disk, but he got caught.

[Lamron]

But does a "prelitigation settlement letter" have the lawfull power of a "court order not to erase personal records"?

[Death's Shadow]

I say no. Lawyers do not have the power to tell people they can not destroy their own personal property. They do not have the power to seize property as evidence in a non criminal case. All of that takes a court order. A letter telling them they MIGHT BE subject to litigation is not a court order.

Did he break the law? YES
That being the case the plaintiff should have pressed criminal charges to obtain the outcome described above. And filed for damages so he would have had to pay restitution to them.

[RedRock]

All practicing attorneys can issue subpoenas for anything, whether right or wrong, and whether you have to obey them is up to a judge or court if you refuse and the issuing attorney fights your refusal.

Non-subpoena "notice" letters usually include language to the effect that (1) such a court order is in the process of being obtained and is expected to be issued soon (especially if you don't have an attorney to fight it) and that (2) you are on notice that if you do destroy such material before you get the order, you will hinder the investigation, infringe upon client X's constitutional rights to blah blah blah and his estate's/children's/etc.'s welfare, you may be violating such and such criminal and civil statutes, and that you will be held personally responsible--monetarily and criminally--if client X is unable to proceed due to your actions. They're usually very frightening and nasty letters that the average person gives in to, and often, they are correct and enforceable.

Again, right or wrong, you have to fight things or they steamroll you--remember, lawyers write all the rules and laws, file and process all the lawsuits, and officially interpret the rules and laws. All the more reason to have good judges faithfully following the US and State Constitutions. NObama!

[vinsanity]

In some states attorneys do not issue subpoenas, courts do. However in some states attorneys can issue them. I have always felt that only a court should be able to issue a subpoena.

[Lamron]

Destruction of evidence is kind of a theoretical crime. If you do a good enough job of it, they're going to have a hard time proving whether something never existed it all, or was removed.

On a related subject, there are encryption methods freely available now (TrueCrypt) that will stand up to any reasonable attempt to break them. There's been a couple of court cases where the physical evidence has been seized, but the contents are unusable without the consent (password) of the owner. It's questionable whether you can force someone to give up a password, and what penalties can legally be applied to refusal.

Some of our existing laws are inadequate for new technologies. Like the cases of virtual properties being stolen. They have value because they can be sold, but it can be hard to prosecute someone for stealing something imaginary.