Expanded Records Retention in P2P Litigation

December 18, 2007
Lexero LLC

 

The Motion Picture Association of America (MPAA) won a copyright
lawsuit against the operators of TorrentSpy.com primarily because of the defendants’
tampering of evidence. The court determined that the defendants had destroyed
evidence after another judge had ordered them to keep server logs, user IP
(Internet Protocol) addresses and other information. TorrentSpy argued that it
destroyed certain records because it had concerns about protecting users'
privacy.

 

In response to the destruction of evidence, a US Magistrate
judge ruled that TorrentSpy would be required to preserve server data logs held
in random access memory (RAM). While the magistrate was criticized for the
ruling because of the temporary nature of such data, a US District Judge
agreed, finding that TorrentSpy destroyed or altered several types of evidence,
including user IP addresses, discussion forum postings about the trading of
movies and moderator identities. All were critical to deciding the merits of
the matter, the court ruled.

 

The court was correct in handling the matter as it did.
First, the defendants were on notice that the records were relevant and must be
retained. Failure to do so was not an option. Second, the defendants’ argument
that privacy was the reason for their actions is incredible. There are numerous
ways to protect data that is relevant to litigation, including protective
orders, secured sharing of data and other arrangements designed to keep other
individuals’ privacy from being violated.

 

The US District Court was correct to order the retention of
the RAM data, as well as order the default judgment against the Defendants. Failure
to follow court orders as to retention of data is a serious offense and more
than enough to assign liability to an offending party. Other courts would be
wise to follow this court’s lead in future electronic retention violations.


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