Case 1:13-cv-00360-RJJ ECF No. 108 filed 11/25/15 Page 1 of 24 PageID.1066

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT MICHIGAN
MALIBU MEDIA, LLC,
Plaintiff,
v.
JESSE RALEIGH,
Defendant.

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Civil Action Case No. 1:13-CV-360-RJJ

PLAINTIFF’S MOTION FOR SANCTIONS AGAINST DEFENDANT
I.

INTRODUCTION
Defendant perjuriously denied owning and using a server. His own pictures and tweets

prove the falsity of this testimony. Defendant also perjuriously denied owning an all-in-one
computer.

Again, Defendant’s own pictures prove the falsity of this testimony.

Defendant perjuriously testified that he only had two MacBooks.

At first,

After Defendant’s wife

admitted owning a third MacBook; Defendant recanted part of his perjury by admitting the third
laptop exists. However, Defendant continues to perjuriously testify that the MacBook was not in
use during the period of infringement. Again, Defendant’s own pictures prove his testimony is
false. Defendant also proffered perjurious testimony about the extent of his BitTorrent use.
And, again, his own computers prove his testimony is materially false. So too does the evidence
establishing that third party works matching his and his family’s interests and hobbies. The
correlation is so exact that coincidence is impossible. Significantly, the files which the evidence
proves were downloaded were not turned over. Defendant’s computers are the most important
pieces of evidence.

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Someone using Defendant’s IP address infringed six (6) of Plaintiff’s copyrighted movies
on five (5) different days in February of 2013. CM/ECF 10-1. Plaintiff’s investigator recorded
forty-nine (49) infringing transactions.

Additionally, Plaintiff’s investigator recorded

Defendant’s IP address distributing three hundred thirty-five (335) third party works via
BitTorrent over the nine (9) month period between and including July 23, 2012 and March 22,
2013. As Defendant knows, Plaintiff alleged this infringement and BitTorrent use occurred
using his computers. To avoid handing over the smoking gun, Defendant has engaged in a
pattern of suppressing and lying about the most critical evidence in the case.
Enough is enough. Defendant is making a mockery of the judicial system. He is
indisputably perpetuating a fraud on the Court. Terminating sanctions are needed.
II.

FACTS1
A. Defendant Intentionally Failed to Produce Relevant Computer Devices and
Committed Perjury
1. Defendant Swore He Did Not Have A Server
Defendant’s discovery response states: he “does not possess [] any [server] devices

responsive to this request.” See Defendant’s Responses to Plaintiff’s Second Set of Request for
Production. When asked at his deposition, “[d]id you have any servers?” he testified “[n]o.” See
Defendant’s Dep. 30:24–25; 31:1. And, again: “Q: No servers? A: No.” Id. at 41:23–24.
Defendant lied under oath.
2. Defendant Has A Picture Of His Server And He Tweets About It
Defendant’s DropBox contains a picture created in November of 2013 of the drives he
uses. Significantly, there is a one terabyte hard drive labelled “server backup.”

1

The following recitation of facts is derived from Plaintiff’s expert, Patrick Paige’s, report, attached
hereto as Exhibit A.
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Undisclosed
and
unidentified
“Server”

On December 27, 2014, Defendant tweeted that he was “looking at the timestamps of some files
on an old server of [his].”

Admission
that server is
Defendant’s

Defendant testified he was working at Silversmith, Inc. in 2013. Defendant’s Dep.
44:16–19. When asked about Silversmith’s servers, Defendant stated they were all between 50
and 100 GB in size, which is one tenth of the size of the pictured server.

Defendant’s Dep.

45:17–25. Based hereon, Mr. Paige concludes “Defendant has a server and did not identify or
produce it. Further, Defendant’s testimony was materially and intentionally untruthful.” Paige
Report at ¶ 15.
3. Defendant Swore He Did Not Have A Third MacBook Or Tablet
In response to Plaintiff’s Interrogatory No. 4 seeking disclosure of all computer devices,
Defendant only listed two MacBook Laptops and two tablets (iPads).
3

Doubling down on

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perjury, at his deposition, Defendant testified that in 2013 he only owned two MacBook Laptops
and two iPads. Defendant Dep. 26:10–13; 26:16–18; 27:20–21; 28:1–6.
4. Defendant Has A Picture Of His Third MacBook And Tablet And His
Wife Admitted Their Existence
Defendant’s DropBox contains a picture of three MacBook Laptops and three tablets.
The picture file2 was created in June of 2013.

The third MacBook and third tablet were not disclosed in discovery and never produced.
At Mrs. Raleigh’s deposition, attended by Defendant, Mrs. Raleigh first mentioned the third
MacBook Laptop. Mrs. Raleigh’s Dep. 33:15–21. Defendant later admitted they owned a third
MacBook Laptop, but denied it existed in 2013.

Defendant’s Dep. 26:10–23.

Plaintiff’s

discovery was served on Defendant on October 25, 2013. Defendant produced his hard drives on
December 3, 2014, March 6, 2015, August 25, 2015 and August 27, 2015.

Defendant never

supplemented his response to include a third MacBook Laptop nor did he produce documents
proving the purchase date of the third MacBook Laptop.
Defendant claims that “numerous people throughout the years” brought and used their
own laptops in Defendant’s home. However, Defendant and his wife both refused to identify
any specific person who did so. See Defendant’s Dep. 48:12–20; Mrs. Raleigh’s Dep. 38:5–12.
2

Note: This image was cropped to protect the identities of the children in the image.

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The above picture does not show any guests. The MacBook appears to be identical to the other
MacBooks favored by Defendant. Based on all of the evidence, Mr. Paige opined “it is likely
that the MacBook in the photo belonged to Defendant, was in use during the period of recorded
infringement, and was likely intentionally suppressed.” Paige Report at ¶ 23.
5. Defendant Swore He Did Not Have An All-In-One Computer
At his deposition, Defendant testified that in 2013 he did not own any other desktops or
computer devices aside from those disclosed and produced in discovery. He also specifically
denied owning an “all-in-one” computer, which he would “classify as a desktop.” Defendant’s
Dep. 31:12.
Q: No all-in-one computers?
A: No…
Defendant’s Dep. 31:14–15
Q: Okay. One of those things that looks like a monitor in my mind that -- do you
know what I'm talking about?
A: Yeah…
Defendant’s Dep. 32:19–21.
Q: Do you ever recall while you were living in that quadruplex anybody bringing
over additional desktop computers?
A: Desktop computers, no.
Defendant’s Dep. 48:7–10.
6. Defendant Has A Picture Of His All-In-One Computer
Defendant’s DropBox contains a picture of an AOC “All-In-One” PC. The picture, titled
“Working at Home,” was created in November of 2012.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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Defendant’s
All-In-One
Computer

Defendant’s
Vizio
Television

This AOC “All-In-One” was not disclosed in discovery and never produced.
7. Defendant Swore He Did Not Have Additional Cloud Storage Devices
Defendant testified that aside from his DropBox and iCloud accounts, he did not have
any other cloud storage devices. Defendant’s Dep. 58:10–19.
8. Defendant Has Numerous Undisclosed Cloud Storage Devices
Patrick Paige located numerous Google Drive account URLs (“Uniform Resource
Locators” also known as web addresses) on Defendant’s laptops.

Defendant did not ever

disclose or produce the contents of his Google Drive account.
On Defendant’s MacBook Laptop No. 1, Patrick Paige discovered the existence of
folders which contained additional storage locations within Defendant’s home network.
Specifically, he located a folder titled “PSF” from which Defendant consistently accessed files.
This storage location was not disclosed in discovery nor its contents produced. Based on all of
the foregoing, Mr. Paige concluded “Defendant intentionally failed to identify and produce all of

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his computer devices. Malibu’s works could be on any of the suppressed devices.” Paige Report
at ¶ 31.
B. Defendant Uses BitTorrent And Committed Perjury Regarding The Extent
Of His BitTorrent Use
In response to Plaintiff’s Interrogatory No. 20, Defendant swore he “does not download
torrents that are not opensource software and legally distributed.”

See also Defendant’s

Responses to numbers 14, 16, and 21 specifying only specific uses of BitTorrent and excluding
music, movies, and others files.

Computer records on Defendant’s hard drives prove

Defendant’s responses are perjurious. A search across all of Defendant’s produced Hard Drives
yields numerous files related to BitTorrent use.

First, the BitTorrent client “uTorrent” is

installed on a Windows XP virtual machine on Defendant’s Macbook Laptop No. 1. Paige
Decl., ¶ 34. Computer records show that the uTorrent.exe file was first created on January 3,
2011. Id. Within the Windows XP virtual machine, Mr. Paige located the uTorrent protocol
LNK file on the start menu for the computer user “Jesse.” Id. at ¶ 35.
Next, a search for the term “torrent” on Defendant’s MacBook Laptop No. 1 yields
numerous results, some of which are text files within the folder “Chinga_La_Migra_Dos.” This
folder and its contents relate to a hacking event that took place in 2011. The folder contains
sensitive files released by hacker(s) containing individuals’ personal information including social
security numbers, driver’s license numbers, account passwords, etc. Further, on Defendant’s
MacBook Laptop No. 1, Mr. Paige located “NFO” files in connection with the movie file “Lost
Highway 1997 720p BRRip x264 RmD (HDScene Release).mkv.” “An NFO file is basically
pirated information which pertains to software or a program that is released and distributed by
any organized group without the knowledge or permission of the creator or owner of the

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software.”3 The NFO files establish that the Lost Highway movie file was an unauthorized
pirated copy. Id. at ¶¶ 36-38.
The BitTorrent client “uTorrent” was also installed on Defendant’s MacBook Laptop No.
2. Additionally, Defendant’s MacBook Laptop No. 2 contains the following .torrent files:
“cablegate-201011290900.7z.torrent”; – a torrent file related to the United
States diplomatic cables leak, widely known as “Cablegate”;
“Chinga La Migra.torrent” – a torrent file related the publication of hundreds
of Arizona law enforcement classified documents;
“Chinga_La_Migra_Dos.torrent” – a torrent file related to the publication of
hundreds of Arizona law enforcement classified documents;
“MMM_Booz_Allen.torrent” – a torrent file related to the publication of
ninety thousand military email addresses and passwords;
“cablegate-201108300212.7z.torrent” – a torrent file related to the United
States diplomatic cables leak, widely known as “Cablegate”
Defendant’s MacBook Laptop No. 2 contains .torrent files for the following copyrighted works:
“Zenith.Part.1.2011.720p.x264-VODO.torrent” – a torrent file located on the
MacBook Laptop No. 2 for the copyrighted movie “Zenith.”
“THE METEORS - [ WWW.PunksAndSkins.COM ] - 13 ALBUMS.torrent”
– a torrent file located on the MacBook Laptop No. 2.
“Demented Are Go.torrent” – a torrent file located on the MacBook Laptop
No. 2 of music by a British band;
“American Survival Guide Magazine.torrent”
At his deposition, and after being notified that computer files prove Defendant used BitTorrent to
download copyrighted works, Defendant retreated from his prior perjurious statements by
testifying that he used BitTorrent to download open-source software, music by the band The
Meteors, and some old magazines. In short, the specific files listed in Plaintiff’s first Motion for
Sanctions. However, Defendant’s deposition testimony was again false. Indeed, Mr. Paige
discovered numerous copyrighted music files in Defendant’s DropBox which contain torrent
metadata:
“05 The Rape Over.mp3”
3

http://www.openthefile.net/extension/nfo (Last Accessed on September 30, 2015)

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“06 - I Got Bass.mp3”
“06 - Walk this way.mp3” By Aerosmith
“06 Drive Slow (ft. Paul Wall & Glc).mp3”
“06 Hate that I love You (Feat. Ne-Yo).mp3”
“06 Metal Hear.mp3”
“06 Nothing’s The Same.mp3”
“06 Silver.mp3”
“07 – Dude (Looks Like A Lady).mp3” By Aerosmith
“07 – Girls Love Me feat. Rick Ross.mp3”
“07 Bedstudy Parade & Funeral March.mp3”
“07 Civilize The Universe.mp3”
“07 Hell is High.mp3”
“07 My Way Home (ft. Common).mp3” By Kanye West
“07 Say it.mp3”
“07 Sex Is Not The Enemy.mp3” By Garbage
“07 What else is there.mp3”
“08 – Blown feat T-Pain.mp3”
“08 – Rag Doll.mp3” By Aerosmith
“05 – Arab Money (Street Runnaz Remix) feat. Rick Ross, T-Pain, Akon &
Lil Wayne 19884011e4a90.mp3”
“06 – I Got Bass19883011e4a90.mp3”
Id. at ¶¶ 39-43.
Defendant’s DropBox also contained files with torrent metadata:
“Interactive Data Visualization for the Web14b0052a561.pdf”
“JavaScript Programmers Reference13b0052a561.pdf”
“Killer UX Design631e0052a561.pdf”
“Learning iOS Programmingcc0052a561.pdf”
“Professional Nodea30052a561.pdf”
“Python for Kids63080052a561.pdf”
“The Principles of Object – Oriented JavaScript63050052a561.pdf”
Id. at ¶ 44.
At the time Plaintiff’s first Motion for Sanctions was filed, the contents of Defendant’s
DropBox had not been produced. Mr. Paige also located several BitTorrent website URLs
pertaining to the websites “The Pirate Bay,” “Kickass Torrents,” and “Torrentazos.” These
websites are notorious indexers of copyrighted works. Id. at ¶¶ 39-45.

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C. The Creation of the Volume on Defendant’s Western Digital Hard Drive
Erased All Data Prior to December 17, 2013
Mr. Paige identified USB devices which were plugged into both of Defendant’s
MacBook Laptops. Id. at ¶ 46. He discovered that a Western Digital MyBook Essentials
External

Hard

Drive

(“Western

Digital

Hard

Drive”)

serial

number

“574D415A4139303734343136” was initially not produced. Id. at ¶ 47. He then conducted a
keyword search across both MacBook Laptops for the Western Digital Hard Drive’s serial
number - “574D415A4139303734343136.” Id. at ¶ 48. The results of this search prove that the
Western Digital Hard Drive was plugged into both the MacBook Laptop No. 1 and MacBook
Laptop No. 2 numerous times between October 2011 and December 2014. Id. In other words,
Defendant has been using the Western Digital Hard Drive in connection with his MacBook
Laptops for the past five years. Id.
On March 6, 2015, Defendant produced his Western Digital Hard Drive. Mr. Paige
discovered that it contained a FileVault2 encrypted volume. Id. at ¶ 49. Examination revealed
that the drive was used as a “backup drive” through use of the software “Time Machine.” Id. at ¶
50. Time Machine is backup software which keeps all the backups stored until the disk (on
which the backup is stored) becomes full. Id. at ¶ 51. Once the disk is full, the oldest backups
are deleted. Id.
During his deposition, Defendant testified that his Western Digital Hard Drive “was
purchased specifically to be a backup drive.” And, that it “was only ever used for that purpose”
Defendant’s Dep. 77:12–14. However, the FileVault2 encrypted volume on the Western Digital
was created on December 17, 2013. Notably, Defendant’s responses to Plaintiff discovery were
due on November 27, 2013. At that time, Defendant was required to produce his hard drives to
Plaintiff. Creation of the FileVault2 encrypted volume erased all data that existed on the hard
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drive prior to December 17, 2013. Id. at ¶¶ 52-54. And, its subsequent use caused all data to be
unrecoverable. Id. Plaintiff’s works could have been on the drive prior to creation of the
FileVault2 encrypted volume. Id. at ¶ 55.
D. Defendant’s Intentional Failure to Produce Relevant Devices and the Other
Evidence Make it Likely That Defendant is the Infringer
In reviewing all the evidence in this case, Mr. Paige discovered significant correlations
between Plaintiff’s Additional Evidence on the one hand, and Defendant’s hard drives, the
deposition transcripts, and other public information about Defendant on the other hand. The
correlations, as further discussed below, are too substantial to be coincidental. Indeed, they
precisely match Defendant’s interests and hobbies, along with those of his wife and children.
1. Defendant’s Interests in Survivalist and Military Media Correlates to
the Additional Evidence
On Defendant’s YouTube page [https://www.youtube.com/user/dravine], Defendant
subscribed to the channels “The Modern Survivalist,” “six pack shortcuts,” and “sigma 3
survival school.” Defendant also produced in discovery a list of phone applications he possesses
one of which is titled “SAS Survival Guide.” Defendant further testified that he possesses the
book “The Ultimate Guide to U.S. Army Survival Skills, Tactics and Techniques” and that he
may be in possession of the e-books “The Survival Handbook, Essential Skills for Outdoor
Adventure” and “Kettlebell training for athletes develop explosive power and strength for martial
arts.” Defendant’s Dep. 90:13–25.
Defendant’s survivalist and military interest correlates to the third party works Excipio
logged someone using Defendant’s IP address infringe along with Plaintiff’s works.
Specifically, in addition to Plaintiff’s copyrighted works, Defendant’s IP address was logged
downloading the following: “The Ultimate Guide to U.S. Army Survival Skills, Tactics, and

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Techniques,” “The Survival Handbook - Essential Skills for Outdoor Adventure,” “Kettlebell
Training for Athletes Develop Explosive Power and Strength for Martial Arts, F,” and “The
Pocket Outdoor Survival Guide - The Ultimate Guide for Short-Term Survival.” Mr. Paige also
located the torrent file “American Survival Guide Magazine.torrent” on Defendant’s MacBook
Laptop No. 2. However, Defendant did not produce a computer with these torrent and media
files.
2. Defendant’s Interests in PlayStation Games Correlates to the
Additional Evidence
Plaintiff’s Additional Evidence lists a PlayStation 3 game titled “Dead Space 3.”
Defendant owns a PlayStation 3. And, Defendant testified that he has played Dead Space 3.
Defendant’s Dep. 91: 9–11. Examination of Defendant’s PlayStation 3 revealed that Defendant
played the games “Resident Evil 5” and “Resident Evil 6” which Defendant also confirmed at his
deposition.

Defendant’s Dep. 92:15–18.

Plaintiff’s Additional Evidence lists the game

“Resident Evil 6 Full For PC + Crack” as downloaded on February 1, 2013.

However,

Defendant did not produce the torrented copy of Resident Evil 6 that his IP address was logged
downloading and distributing.
3. Defendant’s Interests in Obtaining Linux Software Through
BitTorrent Correlates to the Additional Evidence
Defendant admits to using BitTorrent for linux purposes and to download ISO images.
See Defendant’s Response to Plaintiff’s Interrogatory No. 14. Plaintiff’s Additional Evidence
lists “linuxmint-13-kde-dvd-64bit.iso” which is a linux related download. However, this was not
found on any computer Defendant produced.

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4. Defendant’s Interests in Aqua Teen Hunger Force Correlates to the
Additional Evidence
Defendant’s Deviant Art website [http://dravine.deviantart.com/] states that his favorite
cartoon character is “Shake” from the television show “Aqua Teen Hunger Force.” Defendant
also testified that he watches “Aqua Teen Hunger Force.” Defendant’s Dep. 91:12–14. The
television show “Aqua Teen Hunger Force” was repeatedly downloaded and distributed via
BitTorrent by someone using Defendant’s IP address:
Date
09/07/2012
08/28/2012
08/07/2012
07/30/2012
07/24/2012
07/23/2012
07/23/2012
07/23/2012
07/23/2012

Torre nt File Name
[ www.TorrentDay.com ] - Aqua.Teen.Hunger.Force.S09E09.HDTV.x264-2HD
Aqua.Teen.Hunger.Force.S09E10.Totem.Pole.480p.WEB-DL.AAC2.0.H264
[ www.TorrentDay.com ] - Aqua.Teen.Hunger.Force.S09E07.Fightan.Titan.HDTV.x264-FQM
{www.scenetime.com}Aqua.Teen.Hunger.Force.S09E06.HDTV.XviD-AFG
[ www.TorrentDay.com ] - Aqua.Teen.Hunger.Force.S09E05.The.Granite.Family.HDTV.x264-FQM
Aqua.Teen.Hunger.Force.S09E04.Rocket.Horse.Jet.Chicken.HDTV.x264-FQM.mp4
[ www.TorrentDay.com ] - Aqua.Teen.Hunger.Force.S09E03.HDTV.XviD-AFG
[ www.TorrentDay.com ] - Aqua.Teen.Hunger.Force.S09E01.HDTV.XviD-AFG
[ www.TorrentDay.com ] - Aqua.Teen.Hunger.Force.S09E02.HDTV.XviD-AFG

5. Defendant’s Interests in Upcycling Clothing Correlates to the
Additional Evidence
Defendant’s personal website [http:/www.jraleigh.com] states that Mrs. Raleigh has an
interest in “up cycling clothing.” At her deposition, Mrs. Raleigh defined “up cycling” as
“taking one piece of clothing or article and turning it into something else.” Mrs. Raleigh’s Dep.
48:1–6. She also confirmed that she upcycles clothing. Id. Plaintiff’s Additional Evidence lists
“1000 Ideas for Creative Reuse - Remake, Restyle, Recycle, Renew –Mantesh” which is “a
cutting edge collection of the most inventive work being made with re-used, upcycled, and
already existing materials.” 4 However, no computer was produced which has this .torrent file or
its corresponding media file.

4

http://www.amazon.com/1000-Ideas-Creative-Reuse-Restyle/dp/1592535402 (Last Accessed on October 2, 2015)

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6. Defendant’s Interests in Children’s Movies Correlates to the
Additional Evidence
Mr. and Mrs. Raleigh have two young boys. Mrs. Raleigh testified that no other children
resided within their quadruplex during the period of recorded infringement. Mrs. Raleigh’s Dep.
13:2–11; 13:14–25; 14:1–5.

Plaintiff’s Additional Evidence lists numerous media content

specifically targeted at children. Below is a list of such content.
“Finding Nemo (2003)”;
“Toy Story 3 (2010) [1080p]”;
“The Amazing Spiderman (2012) [1080p]”;
“The Avengers (2012) [1080p]”;
The Movie “Arthur Christmas”;
“Captain.America.2.Jaybob.DVDRip”;
“Dragon.Hunters.2008.720p.BluRay.DTS.x264-PIS [PublicHD]”;
“Sammy s Adventures 2 2012.French DVDRip XviD READNFO-ICE”; and
“How to Train your Dragon (2010) [1080p] {5.1}”
Defendant failed to produce a computer with the .torrent or media files for any of these
children’s movies.
7. Defendant’s Interests in Medical Diagnosis Media Correlates to the
Additional Evidence
Defendant produced a list of software applications installed on his phone.

One

application is titled “Medical Encyclopedia.” Plaintiff’s Additional Evidence lists “Current
Medical Diagnosis and Treatment 2013 (gnv64).pdf.”
8. Defendant’s Interests in Cooking Correlates to the Additional
Evidence
Defendant also possesses phone applications entitled “How to Cook Everything” and
“Betty Crocker.” Defendant also tweeted that he intended on writing a “Family Cookbook with
all the recipes [he] [loves]”:

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This matches Plaintiff’s Additional Evidence which lists “Mastering the Art of French
Cooking.pdf” and “631_Mackenzies_Ten_Thousand_Receipts.”
9. Defendant Did Not Turn Over the Computers on Which These
Impossibly Coincidental BitTorrent Files Are Stored
The possibility that these correlations are the coincidental BitTorrent infringements of a
neighbor with the exact same interests as Defendant who happened to use Defendant’s Internet is
near absolute zero.

Since Plaintiff’s Additional Evidence correlates to Defendant and his

family’s interests, hobbies, and activities, Mr. Paige would have expected to find torrent files
correlating to the Additional Evidence on at least one of the computers or data storage devices
that Defendant produced. No such evidence was located. Consequently, this bolsters Mr. Paige’s
conclusion that Defendant has failed to identify and produce all of the computer and data storage
devices in his home.

Further, that the suppressed devices contain files downloaded and

distributed via BitTorrent, like Plaintiff’s movies.
III.

ARGUMENT
This case involves three types of malfeasance: (1) perjury, (2) suppression of evidence,

and (3) spoliation of evidence. This Court may impose different sanctions for such misconduct
including: an award of attorneys’ fees or costs, fines, mandatory or permissive adverse
inferences, contempt, or terminating sanctions. When—as here—a defendant egregiously abuses
the legal process, terminating sanctions are the most appropriate.

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A. Sanctions are Warranted for Defendant’s Perjury
Severe sanctions are warranted because Defendant blatantly lied about the extent and
nature of his BitTorrent use and the number of computer devices he has or had in his home. This
Court has the inherent authority to sanction a party for perjury. Indeed, the Supreme Court held
“[f]alse testimony in a formal proceeding is intolerable,” and courts “must neither reward nor
condone such a ‘flagrant affront’ to the truth-seeking function of adversary proceedings.” ABF
Freight Sys., Inc. v. N.L.R.B., 510 U.S. 317, 323, 114 S.Ct. 835, 127 L.Ed.2d 152 (1994) (citation
omitted). “‘A primary aspect of [the federal court's inherent authority] is the ability to fashion an
appropriate sanction for conduct which abuses the judicial process.’” Lee v. Sass, 2006 WL
799176, at *1 (E.D. Mich. 2006) (sanctioning a party for suborning perjury); see also Vaughan v.
Brigham, 2011 WL 2633369, at *5 (E.D. Ky. July 5, 2011) (sanctioning perjury); Nichols v.
Klein Tools, Inc., 949 F.2d 1047, 1049 (8th Cir. 1991) (sanctioning perjury). “[I]nherent power
sanctions require[] a finding of bad faith.” First Bank of Marietta v. Hartford Underwriters Ins.
Co., 307 F.3d 501, 517 (6th Cir. 2002). Not “a mere mistake.” Wolfe v. GC Servs. Ltd. P'shipDelaware, 2009 WL 230637, at *7 (E.D. Mich. 2009).
Here, Defendant perjured himself in not one, not two, not three, but four separate
interrogatories. See p. 6 supra. He also intentionally perjured himself by testifying he: (a) had
no servers, (b) did not own an all-in-one computer, (c) had no cloud storage devices aside from
his DropBox and iCloud accounts, and (d) only used BitTorrent for limited purposes.
Defendant’s perjury was no mistake. As more fully discussed below, when—as here—a
defendant purposefully abuses the judicial process, terminating sanctions are appropriate. See
pages 19-21, infra.

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B. Sanctions are Warranted for Defendant’s Suppression of Evidence
1. Mandatory Sanctions are Warranted Under Rule 26(g).
Under Fed. R. Civ. P. 26(g)(1)(B)(i)-(ii), by signing discovery responses, the party
certifies the response is “complete” and does not “cause unnecessary delay.” If this rule is
violated “without substantial justification, the court . . . must impose an appropriate sanction[.]”
Fed. R. Civ. P. 26(g)(3).

Here, Defendant’s vague non-answers prevented Plaintiff from

obtaining material evidence and subsequently required prolonging discovery so that Plaintiff
could further prove Defendant’s malfeasance. See Order, CM/ECF 86, p. 3 (“And the Court now
finds itself after the Magistrate Judge’s denial of extended discovery with both a dispositive
motion and a substantive sanctions motion that cannot be fairly resolved without re-opening
discovery to permit both sides to exhaust the new leads and respond to the charges leveled by
each side against the other.”) See also Plaintiff’s Motion to Compel, CM/ECF 88, p.1 (“to date,
not all have been produced. Further, examination . . . revealed the existence of several other
relevant devices . . . none of these have been produced. Now Defendant incorrectly claims that
the devices at issue were never requested . . .”) (Motion subsequently resolved between the
parties). Accordingly, sanctions under Rule 26(g) must be imposed. See U.S. ex rel. Scott v.
Metro. Health Corp., 2005 WL 2405961, at *11 (W.D. Mich. 2005) (sanctioning party for nondisclosure).
2. Sanctions Are Warranted Under Rule 26(e) and Rule 37.
“Compliance with Rule 37 includes complete and timely supplementation of disclosures
and responses in accordance with Rule 26(e).”

In re Telxon Corp. Sec. Litig., 2004 WL

3192729, at *19 (N.D. Ohio 2004). Rule 26(e) requires a party to “supplement or correct” a
response to “an interrogatory, [or] request for production[.]” Rule 37(c)(1) provides: “If a party

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fails to provide information . . . as required by Rule 26(a) or (e), . . . the court . . . may impose . .
. sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).”5 Here, there is no
question Defendant repeatedly failed to “supplement or correct” his perjurious interrogatory and
production responses.

Indeed, to date Defendant has still not amended, for example, his

interrogatory responses to identify his third MacBook, third tablet, or AOC all-in-one computer.
Neither has he amended his responses to Plaintiff’s interrogatories to correct the extent of his
BitTorrent use.

The sheer volume of non-disclosures and production belies any claim these

were simple mistakes. See pages 2-6, supra.
C. Sanctions Are Warranted For Defendant’s Spoliation
1. Defendant Spoiled Evidence
Defendant purposefully deleted the contents of his WD Hard Drive. Spoliation sanctions
are merited when: “First, the party with control over the evidence . . . had an obligation to
preserve it at the time it was destroyed. Second, the accused party . . . destroyed the evidence
with a culpable state of mind. And third, the destroyed evidence [is] relevant to the other side's
claim or defense.” Byrd v. Alpha Alliance Ins. Corp., 518 F. App'x 380, 383-84 (6th Cir. 2013).
Here, all three factors are met.
(a) Defendant Controlled the Evidence and Had a Duty to Preserve It.
First, it is undisputed that Defendant controlled the hard drive. Second, “it is beyond
question that a party to civil litigation has a duty to preserve relevant information, including ESI,
when that party has notice that the evidence is relevant to litigation[.]” John B. v. Goetz, 531
F.3d 448, 459 (6th Cir. 2008). Here, Plaintiff filed its lawsuit on April 1, 2013 [CM/ECF 1] and
5

Sanctions under Rule 37(b)(2)(A)(i)-(vi) may include: (i) directing . . . facts be taken as established for purposes
of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing
designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole
or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole
or in part; (vi) rendering a default judgment against the disobedient party[.]”

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served Defendant on July 21, 2013 [CM/ECF 15]. It is irrefutable that as of July 21, 2013 at the
latest, Defendant had a duty to preserve relevant evidence.
(b) Defendant Destroyed the Evidence with a Culpable State of Mind
The Sixth Circuit explains this element “may be satisfied by showing only that ‘the
evidence was destroyed “knowingly, even if without intent to breach a duty to preserve it, or
negligently.” E.E.O.C. v. JP Morgan Chase Bank, N.A., 295 F.R.D. 166, 175 (S.D. Ohio 2013)
(quoting Beaven, 622 F.3d 540, 553 (6th Cir. 2010)). “In sum, ‘a court need not find bad faith or
intentional misconduct before sanctioning a spoliator.’” Chrysler Realty Co., LLC v. Design
Forum Architects, Inc., 2009 WL 5217992, at *4 (E.D. Mich. 2009) (citation omitted).
Here, computer data conclusively establishes: (1) Defendant’s MacBooks’ logs show
that the Western Digital hard drive was connected to one or the other of them between 2011 and
2014 (Paige Decl., ¶ 48); (2) the Western Digital hard drive was used during the same time
Plaintiff’s copyrighted works were infringed; (3) all data created prior to December 17, 2013 was
deleted from the drive; and (4) only Defendant possessed the drive.

Logic compels the

conclusion: Defendant erased the drive around December 17, 2013—two weeks after his initial
discovery was due.

The period of recorded infringement preceded December 17, 2013.

Plaintiff’s works could have been on this drive. Defendant claims he “is sophisticated enough
that, had he wanted to engage in the downloading or uploading of copyrighted material, he could
have done so without leaving footprints…” [CM/ECF 29, p. 5]. Defendant is wrong. His
spoliation is obvious. Nevertheless, his assertion evinces his intent.
(c) The Evidence was Relevant
The contents of a computer hard drive are extremely relevant to a copyright case
involving movies illegally downloaded online. Indeed, your Honor correctly recognized that

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“[f]orensic analysis of computer materials is … critical to the development of the case[.]” See
CM/ECF86, P. 1; See, e.g., Capitol Records, Inc. v. Alaujan, No. 03-cv-11661, 2009 WL
1292977, *1 (D. Mass. May 6, 2009) (“[T]he computer itself is at the heart of the litigation … it
is, in effect, an instrumentality of the alleged copyright infringement – it is plainly relevant under
Fed. R. Civ. P. 26(b).”); Arista Records, L.L.C. v. Tschirhart, 241 F.R.D. 462, 465 (W.D. Tex.
2006) (“The best proof of whether [defendant infringed] would be to examine her hard drive
which would show, among other things, the existence of any P2P file-sharing programs and the
presence of plaintiffs’ copyrighted sound recordings.”); Paramount Pictures Corp. v. Davis, 234
F.R.D. 102, 111 (E.D. Pa. 2005) (concluding that “the computer’s memory was relevant to the
litigation” in a similar peer-to-peer copyright infringement case). See also MPCA King of
Spades v. TEC 2 Broadcasting, Inc., No. 1:11-cv-00080, 2012 WL 1203372 (W.D. Va. April 10,
2012) (“The plaintiff requests to enter the defendants’ premises to make a complete forensic
copy of any computer hard drive or electronic storage medium used by the defendants…. While
the examination the plaintiffs seek is extraordinary, it is important to remember that the
information sought to be recovered—what songs have been played and when—is at the heart of
this litigation.”).
2. At Minimum, Plaintiff is Entitled to An Adverse Inference.
A “federal court's inherent powers include broad discretion to craft proper sanctions for
spoliated evidence.” Adkins v. Wolever, 554 F.3d 650, 651 (6th Cir. 2009). In the Sixth Circuit,
the severity of a sanction increases along with the severity of a party’s fault. Id. at 652–53.
“[A]n adverse inference for evidence spoliation is appropriate if the Defendants ‘knew the
evidence was relevant to some issue at trial and ... [his culpable] conduct resulted in its loss or
destruction.’” Beaven v. U.S. Dep't of Justice, 622 F.3d 540, 553 (6th Cir. 2010) (citation

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omitted). “‘The sanction [of an adverse inference] should be available even for [ ] negligent
destruction[.]” Id. at 555. (citation omitted). Defendant almost certainly spoiled evidence on
purpose; however, at minimum, Defendant did so negligently. Accordingly, Plaintiff is entitled
to an adverse inference. However, as explained more fully below, terminating sanctions are
more appropriate.
D. Here, Default is Proper For Defendant’s Perjury, Suppression, and
Spoliation
The factors the Sixth Circuit considers when issuing a default under Fed. R. Civ. P. 37 or
under the Court’s inherent authority for perjury or spoliation are “largely the same.” Coleman v.
Am. Red Cross, 23 F.3d 1091, 1094, at n.1 (6th Cir. 1994). “(1) [W]hether the party's failure . . .
is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced. . . ; (3)
whether the [defaulted] party was warned . . . ; and (4) whether less dramatic sanctions were
imposed or considered[.]” Stamtec, Inc. v. Anson, 195 F. App'x 473, 479 (6th Cir. 2006)
(affirming default). Here, the factors weigh heavily in favor of default.
First, willfulness “is any conscious or intentional” act, and fault is “gross negligence[.]”
In re Connolly N. Am., LLC, 376 B.R. 161, 183 (Bankr. E.D. Mich. 2007) (citation omitted).
Here, Defendant’s repeated perjury, suppression, and blatant spoliation prove his conduct was
willful—this was not a single mistake. However, at minimum, he was grossly negligent. Either
way, this factor is satisfied.
Second, Defendant’s conduct severely prejudiced Plaintiff. It goes without saying that
there can be no more severe prejudice to a party than the loss of relevant information. See
Beaven, 622 F.3d at 555 (6th Cir. 2010) (spoliation “‘severely compromised’ the Plaintiffs’ case
by depriving the Plaintiffs of the most relevant piece of evidence to prove their claims.”) Indeed,
“the prejudice to [plaintiff] is clear. [] Plaintiff's expert indicated that Malibu Media's
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copyrighted content could have been among the files that were deleted . . . such that the deletion
would naturally impair Plaintiff’s ability to prove its underlying claim of illegal copying.”
Malibu Media, LLC v. Tashiro, No. 1:13-CV-00205-WTL, 2015 WL 2371597, at *36 (S.D. Ind.
May 18, 2015) (entering terminating sanctions against defendants who spoiled evidence,
committed perjury, and suppressed computer devices) report and recommendation adopted, No.
1:13-CV-205-WTL-MJD, 2015 WL 3649359 (S.D. Ind. June 11, 2015). Further, “Plaintiff
suffered extensive prejudice in bringing the instant motion and pursuing evidence that
Defendants should have long ago disclosed.” Id. Defendant’s delayed production of his hard
drives until after the discovery deadline and his continued suppression of other devices wasted
significant resources and time, all to the prejudice of Plaintiff.
Third, while formal notice of default has not been given to Defendant, this factor is not
dispositive. “[T]his factor seems less relevant in a case such as this, where the conduct at issue .
. . [is] in contravention of basic notions of fairness and professional responsibility. A party does
not need formal notice to know that spoliation of evidence and misrepresentations may lead to
[default].” Fharmacy Records v. Nassar, 379 F. App'x 522, 527 (6th Cir. 2010). Regardless,
Defendant knew of Plaintiff’s intent to seek terminating sanctions at least as early as April 24,
2015 when Plaintiff’s first Motion for Sanctions was filed. And, thereafter, Defendant continued
perjuring himself and he is still suppressing evidence.
Last, Defendant’s repeated discovery abuses and flagrant disregard for the judicial
process demonstrate the futility of any lesser sanction. Regarding the Western Digital Hard
Drive, the damage is done. Material evidence was permanently destroyed. And, Defendant’s
pattern of perjury, suppression, and spoliation makes clear he will not participate fairly or
honestly in this litigation going forward.

Under these circumstances a permissive adverse

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inference would only encourage future would-be-spoliators and would give Defendant an
opportunity to further commit perjury aimed at deceiving this Court or the jury. Fairness and
good policy demand Defendant be defaulted. This point was elegantly stated in another Malibu
case involving similar misconduct:
[A] sanction short of default would not appropriately address the goals of
deterrence and punishment. An adverse inference, for instance, would help
redress the prejudice that Plaintiff has suffered . . . [b]ut such a sanction would
allow the case to continue to trial and would thus allow Defendants to press their
case to this Court. In light of their misconduct, Defendant[] should not be
allowed to do so . . . Where, as here, a party instead makes a mockery of the
judicial process, that party forfeits continued access to that process . . . Similarly,
a monetary sanction would help redress the prejudice . . . and would help punish
the offender[], but it would not adequately protect the judiciary. Such a sanction
would allow Defendants to continue to assert the protections of the judicial
system against Plaintiff’s claim despite Defendant[’s] continued abuse of that
very system. Moreover, such a sanction would send a message that the Court is
willing to accept perjury so long as parties are willing to write a check. This the
Court will not do . . . Finally, the Court notes that, even if default is a “draconian”
sanction . . . courts have frequently determined that default is appropriate in cases
in which parties have exhibited extensive patterns or repeated incidents of
misconduct.
Malibu Media, LLC v. Tashiro, No. 1:13-CV-00205-WTL, 2015 WL 2371597, at *37 (S.D. Ind.
May 18, 2015) report and recommendation adopted, No. 1:13-CV-205-WTL-MJD, 2015 WL
3649359 (S.D. Ind. June 11, 2015). The same rationale applies here with equal force.
IV.

CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests this Court enter a default

judgment against Defendant for his misconduct, or any other such relief this Court deems just.

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Dated: November 25, 2015
Respectfully submitted,
LIPSCOMB, EISENBERG & BAKER, PL
By:

/s/ Jessica Fernandez
Jessica Fernandez, Esq.
Lipscomb, Eisenberg & Baker, PL
2 South Biscayne Blvd, Suite 3800
Miami, Florida 33131
Phone No. (786) 431-2228
Fax No. (786) 431-2228
Email Address: Jfernandez@lebfirm.com
Attorneys for Plaintiff

GOOD FAITH CERTIFICATION
Plaintiff, by and through undersigned counsel, pursuant to Fed. R. Civ. P. 37(a)(1),
hereby certifies that on November 25, 2015, undersigned conferred with defense counsel through
e-mail in a good faith effort to resolve the issues raised in this motion and defense counsel
advised that he would not consent to the relief requested herein.
By:

/s/ Jessica Fernandez

CERTIFICATE OF SERVICE
I hereby certify that on November 25, 2015, I electronically filed the foregoing document
with the Clerk of the Court using CM/ECF and that service was perfected on all counsel of
record and interested parties through this system.
By:

24

/s/ Jessica Fernandez