By Richard Menta 12/18/07
Electronic Discovery or eDiscovery in just a few short years has become a most powerful weapon for all sides in a court case. It is so important that ever updated guidelines are pouring out of court precedent as to what files you can or cannot purge as well as to how long is reasonable before files, emails or any other type of data can be destroyed. If you erase the wrong file or backup tape too soon a court may penalize you. Such penalties can and have included forfeiture of the case itself.
That is just what happened to TorrentSpy in its case against the major film studios. Stating that TorrentSpy hid and destroyed evidence that made a fair trial impossible a federal judge ruled against the indexing service in court. "Although termination of a case is a harsh sanction appropriate only in 'extraordinary circumstances' ... the circumstances in this case are sufficiently extraordinary to merit such a sanction" wrote U.S. District Court judge Florence-Marie Cooper. "Defendants' conduct during discovery in this case has been obstreperous", the court continued. "They have engaged in widespread and systematic efforts to destroy evidence and have provided false testimony under oath in an effort to hide evidence of such destruction."
The end result is that TorrentSpy is now fully liable for copyright infringement. Copyright infringement didn't have to even be proven at trial, because the court ruled the actions of TorrentSpy made a fair trial impossible. Torrentspy, therefore, must bear the full burden of guilt. Ira Rothkin, the attorney for TorrentSpy told CNET "Now all TorrentSpy can do is argue over the amount of damages". Rothkin said they will appeal the decision.
In the world of eDiscovery the case law is all relatively new and the actual trigger points to when a violation indeed becomes a violation is something that will take years of appeals to fully solidify. This includes finalizing a balance between the protection of privacy and the collection of evidence for the court. Of course, the court in the TorrentSpy case feels that the service went well over the line in what it feels was an intentional obfuscation of justice.
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