Malibu Media, LLC v. Tashiro
| Decision Date | 18 May 2015 |
| Docket Number | No. 1:13-cv-00205-WTL-MJD,1:13-cv-00205-WTL-MJD |
| Parties | MALIBU MEDIA, LLC, Plaintiff, v. KELLEY TASHIRO, N. CHARLES TASHIRO, Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
This matter comes before the Court on Plaintiff's "Motion for Sanctions Against Defendants for Spoliation of Evidence and Perjury," [Dkt. 130], and Plaintiff's "Supplement to Its Motion for Sanctions Against Defendants for Spoliation of Evidence and Perjury." [Dkt. 159.] For the reasons set forth below, the Magistrate Judge recommends that the Court GRANT Plaintiff's motion for sanctions. [Dkts. 130 & 159.]
In 2013, Malibu Media, LLC ("Plaintiff") retained a German company—IPP Limited—to investigate whether certain internet users were infringing Plaintiff's copyrights by uploading and/or downloading its copyrighted adult movies via a BitTorrent client. [See Dkt. 1.] IPP monitored the BitTorrent file distribution network1 and identified certain IP addresses2 that were being used to distribute Plaintiff's copyrighted movies. [Dkt. 5-1 ¶¶ 5-7 (Decl. of Tobias Fieser,February 4, 2013).] On February 5, 2013, Plaintiff filed suit against an unidentified defendant, alleging that the defendant had used a BitTorrent client to infringe the adult movies on Plaintiff's X-Art website. [See Dkt. 1.] The individual was initially known only by her IP address—98.222.184.69—but Plaintiff subpoenaed the alleged infringer's ISP—Comcast—to determine that the infringing activity occurred at the address of Kelley Tashiro ("Defendant Kelley"). [See Dkt. 14.] Plaintiff accordingly filed an amended complaint against Defendant Kelley on April 8, 2013. [Dkt. 13.] Attorney Jonathan Phillips ("Phillips") entered an appearance on Defendant Kelley's behalf. [Dkt. 19.]
Plaintiff further amended its complaint on May 15, 2014. [Dkt. 124.] This amendment added Defendant Kelley's husband, N. Charles Tashiro, ("Defendant Charles"), as the second named defendant in the case. [See id.] Attorney Phillips thereafter began representing both Defendant Kelley and Defendant Charles. [See, e.g., Dkt. 134.]
Plaintiff's current motion alleges two types of misconduct: 1) spoliation of evidence based on Defendants' alleged deletion of computer files; and 2) perjury in the form of misrepresentations by Defendants at their depositions and in their responses to various discovery requests.
During discovery, Defendant Kelley agreed to provide the computer hard drives from her household to Quantum Discovery for forensic imaging. [See Dkt. 130 at 3.] She did so on December 23, 2013, and Quantum Discovery created images of the hard drives on the same day. [See Dkt 76-1 ¶ 17 (Decl. of Patrick Paige, February 10, 2014).] Quantum Discovery then sent the images of the hard drives to Plaintiff's expert witness, Patrick Paige. [Id.] Mr. Paige received a forensic image of a Western Digital hard drive with serial number WXHZ08077637; a forensicimage of a hard drive labelled "int HDD inside usb encl."; and a forensic image of an iPad hard drive. [Id. ¶¶ 18-19.] He also reported that Quantum Discovery had received a fourth hard drive from Defendants' household, but that the fourth hard drive could not be imaged. [Id. ¶ 20.]
Mr. Paige examined each of the images of the hard drives for evidence of BitTorrent use. [Id. ¶ 21.] On the "int HDD inside usb encl." hard drive, Mr. Paige found evidence that the "hard drive was repeatedly used to download BitTorrent files and also had BitTorrent software installed on the hard drive." [Id. ¶ 23.] He also determined that "numerous files and folders associated with BitTorrent use were deleted from the hard drive on December 22, 2013 at approximately 10:00 pm—the night before the hard drive was turned over to Quantum Discovery for imaging." [Id. ¶ 25 (emphasis original).] Mr. Paige recovered some of the deleted files and determined that "many of these BitTorrent files [were] associated with adult movies" and that others were "BitTorrent clients, that enable the BitTorrent protocol to work." [Id. ¶ 26.] He also concluded that "Malibu Media, LLC's copyrighted content could have been deleted from the drive." [Id. ¶ 28.]3
Defendants' expert, Delvan Neville, also examined Defendants' hard drives. [See Dkt 101-1 (Decl. of Delvan Neville).] He agreed "with Mr. Paige's finding that there were many files and folders deleted on 22 December 2013," but "dissent[ed] from Mr. Paige's finding as to whether any of the deleted files could be Malibu Media, LLC's copyrighted content." [Id. ¶¶ 5-6.] He stated that he recovered all of the deleted files, searched them, and found no evidence that they contained Plaintiff's copyrighted content. [Id. ¶¶ 14-24.] Despite Neville's purportedrecovery, Plaintiff contends that the above-described deletion constitutes spoliation of evidence, and Plaintiff asks the Court to enter default judgment against Defendants. [See Dkt. 130.]
Plaintiff deposed Defendant Kelley in February 2014. [Dkt. 107-1 (Kelley Tashiro Dep., February 25, 2014).] She testified that she had visited adult websites, but she denied searching for Plaintiff's X-Art website. [Kelley Tashiro Dep. 52:12-53:23.] In her answers to Plaintiff's Interrogatories, Defendant Kelley also denied any knowledge of BitTorrent other than that gained through this lawsuit. [Dkt. 76-2 ¶ 13.]
Plaintiff also deposed Defendant Kelley's husband, Defendant Charles. [Dkt 107-2 (Charles Tashiro Dep., February 25, 2014).] He testified that he had used BitTorrent, [Charles Dep. 26:3-27:13], and that he had visited Plaintiff's X-Art website. [Charles Dep. 52:23-53:7.] Thereafter, Plaintiff amended its complaint to add a claim of copyright infringement against Defendant Charles. [See Dkt. 124.] Plaintiff filed the amended complaint on May 15, 2014. [Id.]
During discovery, Plaintiff also served interrogatories and requests for production on Defendant Kelley. [See Dkt. 130 at 5.] Plaintiff's Interrogatory No. 4 asked Defendant Kelley to identify "each of the Computer Devices used in [her] home during the preceding two years" and to state "who has been authorized to use the Computer Device, the times during which each such person was authorized to use the Computer Device, and [the identity of] the person who primarily uses the Computer Device." [Dkt. 76-2 ¶ 4.] Defendant Kelley answered the interrogatories on October 17, 2013 and supplemented her responses on December 31, 2013, January 16, 2014, and January 19, 2014. [Id. at 10.] Her responses identified four hard drives: a Dell Inspiron laptop hard drive; an iPad hard drive; a Sony Vaio desktop hard drive; and the Stover drive. [Id. ¶ 4] This proved to be an incomplete list of the computer drives in Defendants' home: On April 8, 2014, Plaintiff's counsel wrote to attorney Phillips and stated that "it has been brought to my attention that there are several hard drives/external devices that the defendant failed to disclose in discovery responses." [Dkt. 130-3 at 3.] Plaintiff's counsel specifically identified a WD 5000AAV External 1.65 hard drive; a WD My Passport 070A 1032 hard drive; and a WDC WD40 hard drive. [Id.] Plaintiff's counsel based these identifications on Mr. Paige's examination of the image of Defendant Kelley's laptop. Paige determined that the three drives "were connected to Kelley Tashiro's laptop computer" but had not been disclosed to Quantum Discovery for imaging. [See Dkt. 109-2.] Plaintiff's counsel also noted that the drives had been connected in the early morning hours of December 23, 2013—the day the drives were to be turned over to Quantum Discovery—and stated that these drives should have been disclosed in response to Plaintiff's requests for production. [Dkt. 130-3 at 3.]
Attorney Phillips responded to Plaintiff's letter on the same day. He wrote that Defendant Kelley "is unaware of these drives," such that there was "no 'failure to disclose'" in Defendant Kelley's discovery responses. [Id. at 5.] Phillips also stated that his client "connected nothing" to her computer on the night of December 22, and he suggested the connections were done by Quantum Discovery. [Id. at 7.] In another email the next day, Phillips maintained that the drives "were not provided, because they do not exist, or at least to not [sic] known to exist by Kelley Tashiro." [Id. at 10.]
The parties later determined that two of the hard drives identified by Plaintiff's counsel actually had been produced and had been included in the four hard drives originally provided to Quantum Discovery. [See Dkt. 137 at 14.] The last of the hard drives, however, had not been produced, and on May 31, 2014, Defendant submitted a fourth supplement to her response toPlaintiff's interrogatories. [Dkt 130-2 at 11.] She stated that she "only recently became aware of an additional external harddrive contained within the [Tashiro] household," and she said she was "unaware of the drive's existence previously." [Id. at 4.] The additional drive was a "Western Digital External HD" with serial number WCASUZ940825. [Id. at 4.] Defendant Kelley stated that her husband was the primary user of the device. [Id.]
Based on the above events, Plaintiff contends that Defendants and their counsel intentionally misrepresented the number of hard drives in their household in their discovery responses and in their communications with Plaintiff's counsel. [Dkt. 130 at 5.] Plaintiff argues that this constitutes perjury and that default is the only appropriate sanction for the alleged misconduct. [Id. at 16.]
On October 1, 2014, Plaintiff filed its "Supplement to its Motion for Sanctions Against Defendants for Spoliation of Evidence and Perjury," [Dkt. 159], and asserted that since the time of the filing of its original motion, "additional evidence of perjury [had] come to light." [Id. at 1.] Plaintiff claimed that...
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