Not this.
The accused is not bound to preserve any and all possessions that might be discoverable in litigation at a later date after even a rumour that the accused will become a party in a suit.
Evidence does not exist before probable cause defines the scope of what will constitute evidence, only after a motion to preserve evidence is filed.
1) When he received the notice to preserve evidence, the clock started running there and violations of civil rules became sanctionable.
2) Probable cause does not exist in civil cases.
Well, it's a little more than "probably". They have to show a preponderance of evidence. It's not enough to say, "this guy's a big movie fan and had 200gig of downloads every month and never rented a movie or went to a theater, so he probably was pirating movies".
Preponderance of the evidence is a 51 percent standard......i.e. "more likely than not".
Barring any statutorily necessary elements of the Plaintiff's claims, if the jury finds that to be sufficient then the dude can be found liable. It's all circumstantial, certainly. But I have guys doing decades of prison time based on circumstantial evidence, and that was "beyond a reasonable doubt". With what you lay out above, I could *easily* see a jury making a few key inferences and finding liability in that.
Never try and predict what the 12 geniuses in the box will or will not do.
Defendant received notice of this lawsuit at the beginning of October 2012. []Defendant, however, did not destroy the hard drive until “late February 2013.” [] Thus, almost five months passed between the time that Defendant learned of the lawsuit and Defendant’s destruction of the hard drive. Had Defendant truly wished to hide adverse information, the Court finds it unlikely that Defendant would have waited nearly five months to destroy such information. Instead, Defendant’s continued use of the hard drive for the months after he learned of the litigation suggests that the hard drive contained no information to hide at all, or that Defendant did not intend to hide any such information.
That's one interpretation. Another has been suggested earlier in this forum that he chalked it up to a scare tactic and didn't think anything had come of it. If this case goes to depositions then more will be revealed about that.
You have this backwards. The accused is presumed innocent until proven otherwise (the wishes of copyright holders notwithstanding). The burden of proof is thus upon Malibu Media to prove he knew about their intent to sue before he had the drive recycled. Personally I would say a mailed notice from Comcast is insufficient - lots of us have gotten those, whether correctly or in error, and nothing has happened. So it's insufficient to act as a notice to preserve evidence. I'd say a certified notification letter which must be followed through with an actual lawsuit or settlement is the minimum. Another party should not have the power to compel me to modify my behavior (hang onto equipment I'd otherwise throw out) for the mere cost of a 49 cent stamp.
1) Civil court is not a case of "guilty or innocent". It is a manner of "liable or not liable" and to what degree.
2) It is not accurate that the Defendant had no burden. This was a discovery abuse motion. The initial burden is on Malibu to prove that a violation of evidence rules occurred (this is a low and easily met burden). *After* they have met that burden, the burden shifts to the Defendant to put on any defenses or to refute the assertion.
3) The rules of evidence state that one has committed discovery abuse if evidence is disposed of after someone "knew or should have known" that litigation was pending. Yes, attorneys many times make threats. Yes most of the time they are just talking noise. But don't kid yourself. A notice to preserve evidence *is* enforceable. The recipient ignores it at their own peril.
If the plaintiff can't show that there was (not say that there probably was) evidence on the drive, then the court should bloody well assume there wasn't (assumption of innocence and all that nonsense....)
This is a civil case. "Innocent until proven guilty" does not apply. Instead the issue is one of "liable or not liable". Further it is not a binary yes / no but rather a percentage of fault scale. Subject to notable exceptions the Plaintiff must prove that the Defendant is liable via a preponderance of the evidence (51% or more).
Or just put the receiver on the desk, and waste a bit of *their* time.
That's a good way to get out of the collections department and into legal. And legal will just take out a court order for the money against you ex parte in many states.
I stopped reading here.
Note to readers: The parent post above doesn't know shit about the civil debt collection process.
"I've seen it. It's rubbish." -- Marvin the Paranoid Android