A professional photographer took a photo of Willie Nelson at a concert in 2009. The photographer posted the photo on Wikipedia and allowed others to post the image provided they complied with the terms of the Creative Commons Attribution 2.0 Generic License. Funny how time slips away, but in April of 2014, the photographer discovery the photo was posted on a website promoting a concert. Screenshots were taken and a cease and desist letter was sent that November informing the future defendant of their duty to preserve. The image was removed from the site and screenshots taken by the future defendant. Philpot v. LM Communs. II of S.C., Inc., 2018 U.S. Dist. LEXIS 113927, at *4-5 (E.D. Ky. July 10, 2018).
The photographer filed a lawsuit in April 2017, nearly three years after first discovering the image. The Plaintiff brought a motion for sanctions for the alleged failure of the Defendant to save a “native copy” of the photo that the Plaintiff demanded to be removed. The Plaintiff claimed that by not preserving a copy of the photo, the Defendant “destroyed” any metadata with copyright management information was in the file. The Plaintiff sought an adverse inference that the Defendant infringed his copyright and deleted copyright management information. Philpot, at *9-10.
Federal Rule of Civil Procedure Rule 37(e) governs sanctions for lost electronically stored information. If ESI should have been preserved is lost, a Court “may order measures no greater than necessary to cure the prejudice.” Alternatively, if a Court finds that a party acted with the intent to deprive a party of that ESI, a Court can order adverse inference instructions, dismiss the action, or enter a default judgment.” Philpot, at *10-11, discussing Fed. R. Civ. P. 37(e)(1) and (2).
The Court rejected the Plaintiff’s arguments. First, the Plaintiff did not threaten litigation in his April 2014 cease and desist letter. As such, the Court could not find the Defendant had a duty to preserve the photo. Moreover, the Plaintiff did not demonstrate that the Defendant knew the file contained relevant information for the Plaintiff’s copyright claim. Philpot, at *11-12. Second, there was no evidence of what information could have been learned from the photo that could have been relevant to the lawsuit that was not already available to the Plaintiff.
The Plaintiff claimed that image file would provide him more information about the absence of the copyright management information. That was not enough to support a sanctions claim. The Court described the Plaintiff’s argument would create a variation on res ipsa loquitur, where posting an image “without copyright management information speaks for itself — that the posting party must have removed it.” Philpot, at *13-14.
The Court accordingly denied the Plaintiff’s motion.
Bow Tie Thoughts
The main issues in any case with the destruction of ESI are whether there was a duty to preserve and then whether a party acted with the intent to deprive. In this case, there was no real discussion of the intent to deprive, as the Defendant responded to a cease and desist letter by removing the image from their website. There also was not an overt threat that litigation was threatened, so the Defendants arguably were not under a duty to preserve the information.
One issue for many parties who have a duty to preserve, is for how long they have to maintain a litigation hold. The lawsuit in this case was filed nearly three years after the image was discovered on the website. While this was just one image, cases where there could be multiple custodians with a large volume of email could get very burdensome to preserve while waiting for a statute of limitations to expire.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.