Blow Out

Chief Magistrate Judge Paul Grimm of the District of Maryland has produced another sterling contribution to the scholarship and advancement of electronic data discovery. In the Zubulake v. USB Warburg tradition of one lawsuit spawning multiple seminal opinions, on Sept. 9, 2010, Grimm issued a splendid analysis of the law of spoliation as it relates to e-discovery in Victor Stanley, Inc. v. Creative Pipe et al., No. MJG-06-2662 (D. Md. Sept. 9, 2010).

What will surely be known as Victor Stanley II devotes 35 of 89 pages to describing the reprehensible data destruction and dissembling that's all-too-familiar to forensic examiners, but which Grimm labels, "the single most egregious example of spoliation that I have encountered in any case that I have handled or in any case described in the legion of spoliation cases I have read in nearly 14 years on the bench."

The underlying dispute in Victor Stanley concerns alleged (and lately conceded) copyright infringement. Victor Stanley sells "site furnishings," that is, the benches, litter receptacles, bike racks, and planters seen in parks and public spaces. Creative Pipe sells competing products; but per the court, its creativity extends to both purloining VSI's designs and fabricating progressively less credible explanations why CPI's electronic evidence was destroyed and corrupted.

VSI makes available on its website detailed specifications and engineering drawings of its product line, subject to a license agreement barring their use to fashion competing products. VSI charged that someone at CPI downloaded VSI designs and specifications using the alias "Fred Bass" and that CPI used the downloaded data to knock off copyrighted designs.

The court described the unrelentingly abusive antics of CPI's principal, an unsavory character named Mark Pappas, including mass deletions, use of evidence destruction tools, and fabulism.

Unappeased by defendant's consent to entry of a default judgment, the court cited Pappas for civil contempt by clear and convincing evidence and ordered him imprisoned for "a period not to exceed two years, unless and until he pays to Plaintiff the attorney's fees and costs that will be awarded… ."

Judge Grimm is unstinting in his criticism, noting Pappas' ineptitude, even in spoliation: "Plaintiff VSI is fortunate that Pappas's zeal considerably exceeded his destructive skill and his judgment in selecting confederates to assist in his efforts to destroy ESI without detection. While Pappas succeeded in destroying a considerable amount of ESI, Plaintiff was able to document this fact and ascertain the relevance of many deleted files. At the end of the day, this is the case of the 'gang that couldn't spoliate straight.' "

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Source: Law.com
By: Craig Ball