eDiscovery Daily Blog

Court Grants Adverse Inference Sanction Against Infringing Author: eDiscovery Case Law

In Nunes v. Rushton, No. 2:14-cv-00627-JNP-DBP (D. Utah May 14, 2018), Utah District Judge Jill N. Parrish, ruling that the plaintiff was prejudiced by the deletion of one of the defendant’s Google “sock puppet” accounts, granted the plaintiff’s motion for sanctions in part, ordering an adverse instruction to the jury regarding the “bad faith” deletion of that account.  Judge Parrish denied the motion with regard to several other accounts, ruling that the plaintiff was not prejudiced by deletion of those accounts (as most of the information was still available or recoverable).

Case Background

In this case, the defendant infringed the plaintiff’s copyright in her novel by copying protected elements of the book and distributing copies of the infringing work to reviewers and bloggers for promotional purposes. Around this time, the defendant created a number of “sock puppet” accounts on Google and Yahoo by registering these accounts under usernames that did not identify her as the individual controlling the accounts and used these accounts to create several sock puppet accounts on Facebook, Goodreads, and Amazon. The defendant then used the Goodreads and Amazon sock puppet accounts to post positive reviews of her own books and negative reviews of the plaintiff’s books. The defendant also created a Twitter account and a Blogspot account under her pen name to promote her books.

In August 2014, the plaintiff became aware of the potential infringement, attempted to obtain an advance copy of the infringing novel and discover the true identity of the defendant’s pen name. The defendant used her sock puppet social media accounts to anonymously criticize the plaintiff’s efforts to investigate the infringing novel. Sometime in August or September of 2014, after the plaintiff had discovered the defendant’s identity, The defendant deleted most of her sock puppet accounts. The defendant also deleted her pen name Twitter and Blogspot accounts. The plaintiff filed this lawsuit on August 28, 2014.

During litigation, the plaintiff made a discovery request for documents stored on the defendant’s various Google and Yahoo accounts. On August 12, 2015, while this discovery request was pending, the defendant deleted one of her Google sock puppet accounts.  When the court granted a motion to compel the defendant to produce documents from her Google and Yahoo accounts, counsel for the defendant represented that she had lost the passwords to the accounts, leading to subpoenas to those services.  The defendant deleted all of the remaining accounts on March 21, 2016, asserting that she did so because she believed that all of the documents associated with the accounts had been or would be produced by Google and Yahoo pursuant to the subpoenas.  Google stated that the account deleted on August 12, 2015 could not be recovered because too much time had passed, but preserved the accounts that had been deleted on March 21, 2016.

Judge’s Ruling

In analyzing the defendants’ motion, Judge Parrish denied the motion for sanctions regarding most of the accounts, determining that the plaintiff suffered no prejudice because the information pertaining to those accounts either remained, was saved by the plaintiff before the accounts were deleted or could be recovered by Google and Yahoo.

As for the August 12, 2015 deletion of one of the Google accounts, Judge Parrish stated: “At the time of the deletion, Rushton had a duty to preserve this account because litigation was pending. The court also finds that Nunes was prejudiced by the deletion because any documents or emails stored on this account were irretrievably lost… Given that litigation had been pending for almost a year, that Rushton was represented by counsel, and that Nunes had requested the production of documents associated with this Google account, the court infers that Rushton’s August 12, 2015 deletion of one of her Google accounts was done in bad faith.”

As a result, Judge Parrish ordering an adverse instruction to the jury regarding the “bad faith” deletion of that account.

So, what do you think?  Was an advance inference sanction a severe enough punishment?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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