United States District Court, W.D. Texas, Austin Division
W. AUSTIN UNITED STATES MAGISTRATE JUDGE.
the Court are Defendant Grande Communications Networks
LLC’s Motion for Evidentiary Sanctions Based on
Spoliation of Rightscorp Evidence (Dkt. No. 247);
Plaintiffs’ Opposition (Dkt. No. 253); Grande’s
Reply (Dkt. No. 260); Grande’s Supplemental Brief (Dkt.
No. 284); Plaintiffs’ Response (Dkt. No. 283); and
various exhibits filed under seal. The District Court
referred these motions to the undersigned for disposition.
motion, Grande requests that the Court prevent UMG from
offering at trial any of the notices of infringement that
were generated by Rightscorp, Inc.-a third party vendor that
gathered data on alleged infringement committed by Grande
customers-and any music files downloaded by Rightscorp.
Grande contends that Rightscorp destroyed “virtually
all evidence underlying” the notices and music files,
and due to this spoliation, an exclusion sanction is
warranted. UMG responds that it did not destroy any
evidence, and to the extent anything has been deleted, it was
done by Rightscorp, which is not a party to this case, and
which therefore had no duty to retain the information Grande
contends was destroyed or deleted. UMG notes further that
Judge Ezra has already addressed this issue and rejected
Grande’s arguments, and even if the issues are still
ripe for decision, Grande mischaracterizes the nature and
relevance of the allegedly unavailable data.
is “the destruction of evidence . . . or the
significant and meaningful alteration of a document or
instrument.” Andrade Garcia v. Columbia Med.
Ctr., 996 F.Supp. 605, 615 (E.D. Tex. 1998) (internal
quotation marks omitted). The governing standard for
excluding evidence or otherwise imposing sanctions for the
destruction of evidence is contained in Federal Rule of Civil
Procedure 37(e). That rule was substantially amended in 2015
to resolve conflicting circuit standards regarding sanctions
when electronically stored information is not preserved.
See CAT3, LLC v. Black Lineage, Inc., 164 F.Supp.3d
488, 495 (S.D. N.Y. 2016). Under Rule 37(e), a court must
first determine that four predicate elements exist before the
rule is applicable:
• there is ESI that should have preserved;
• that ESI has been lost;
• the ESI was lost because of a party’s failure to
take reasonable steps to preserve it; and
• the ESI cannot be restored or replaced.
Civ. P. 37(e). If the court finds that all four of these
elements are established, then the court considers the
appropriate responsive measures. If the court finds that a
party has been prejudiced by the loss of the ESI, “it
may order measures no greater than necessary to cure the
prejudice.” Id. at 37(e)(1). If, on the other
hand, it finds that the party who caused the loss of the ESI
“acted with intent to deprive another party” of
the use of the information, the court may take one of three
more severe steps: (1) presume the information was
unfavorable to the destroying party; (2) instruct the jury it
either may, or must, presume the information was unfavorable
to the destroying party; or (3) dismiss the case or enter a
default judgment. Id.
Judge Ezra’s order on summary judgment
ruling on one of the summary judgment motions in this case,
Judge Ezra ...