The Modern Archivist

Megaupload Founder in More Trouble

By Benjamin Lee

Kim Dotcom, one of the founders of Megaupload.com, was arrested last week for his website that took away over 500 million from copyright holders and promoted online piracy. Dotcom is under fire once again for a ‘joke email’ he sent out two years ago that authorities got a hold of. Since Dotcom has a long track record of previous run-ins with the law, it comes as no surprise that authorities did not take his joke so lightly. In April of 2010, Dotcom sent the following out to his neighborhood watch.

Dear Neighborhood-watch,
As you all know I recently moved into the Neighborhood and I am a former hacker. Well I was just hacking into a local mail server and guess what I found.
First of all let me assure you that having a criminal Neighbor like me comes with benefits.
1. Our newly opened local money laundering facility can help you with your tax fraud optimization.
2. Our network of international insiders can provide you with valuable stock tips.
3. My close personal relations with other (far worse) criminals can help you whenever you have to deal with a nasty Neighbor.
In all seriousness: My wife, two kids and myself love New Zealand and ‘We come in peace’.
Fifteen years ago I was a hacker and 10 years ago I was convicted for insider trading. Hardly the kind of crimes you need to start a witch hunt for. Since then I have been a good boy, my criminal records have been cleared, and I created a successful Internet company that employs 100+ people.
All the media has to report are old news. Why? Because I have chosen to avoid the media. Just look what the media did to this Neighborhood. Scary.
Now you can make a choice: 1: Call Interpol, the CIA, and the Queen of England and try to get me on the next plane out of New Zealand. 2: Sit back, relax and give me a chance to do good for New Zealand and possibly the Neighborhood.
If you feel like it come over for coffee sometimes. And don’t forget to bring the cocaine (joke). All the best, Kim.
The Guardian

Though I found the email humorous, neighbors did not, reporting that it “scared the hell out of everybody”. Dotcom may have had the right intention in trying to ease his neighbors’ worries, but he can only regret sending that email now, as it alludes to his past criminal behavior and possible current drug use. This email was sent almost two years ago, and Dotcom probably thought nothing would come of a harmless email. Boy, was he wrong!

More and more companies are investing in email archiving solutions, as they help litigation processes run more smoothly, provide a clearer picture to trials and cases, and save time and money! This is bad news for people like Dotcom, but good news for everyone else in the world.

I spam, you spam, we all spam for more spam?

By Benjamin Lee
It was announced today that the average number of promotional email campaigns sent by top retailers to subscribers reached an all-time high this past year. “Retailers sent each of their subscribers 177 promotional email campaigns on average last year, up 16% from 2010,” said Chad White, Research Director at Responsys, who tracks the email marketing activity of hundreds of the top retailers. “Since 2008, the average number of promotional email campaigns sent by the top retailers to each of their subscribers has risen 51%.” But it isn’t just marketing emails and general spam that has been continually increasing at an exponential rate; the usage of email in general has skyrocketed.

While email usage may have started out as a casual means of communication, it has recently transformed into the lifeblood of most organizations and serves as the primary mode of communication for almost all businesses. In an increasingly paperless world, emails have replaced written memos as a standard business record, and transferring files in the form of attachments have become commonplace. This coupled with the increase in spam and marketing promos have employees’ inboxes cluttered, hitting email storage restrictions faster than ever before.

So what can companies do for relief from the steady stream of spam? Investing in an email archiving solution can alleviate the pains of spam by providing the following benefits:
-reducing the load on the company’s mail server
-enable users to self-restore any deleted email from backup
-maintain an archive of all email, which can be easily searched for compliance or eDiscovery
-save time for employees as they no longer need to organize their inboxes

Times are changing, and it is up to you to keep up with the ongoing trend of increasing email and spam levels. Email archiving solutions represent a viable solution to meet most of these ongoing demands.

Havana Bar Brawl? Nope, just sanctions!

By Elle Byram. Esq., CEDS

It’s not too often that you see a case in which both the plaintiff and the defendant receive sanctions for spoliation. This is exactly what happened in Patel v. Havana Bar, Restaurant and Catering, 2011 WL 6029983 (E.D. Pa. 2011). The case arose from injuries sustained by plaintiff when he fell from a second floor balcony at an engagement party in the defendant’s bar. Both parties, perhaps one more egregiously than the other, spoliated evidence.

Defendant, who routinely recorded video surveillance of the bar, and which was recorded on the night of the injury, failed to preserve the video. The surveillance system was programmed to record over the existing footage every three weeks. Defendant, claiming that he attempted to prevent the footage from the night of the accident being erased, was unsuccessful in such attempts.

The plaintiff’s part appears to be substantially more egregious. About a year after plaintiff was injured, plaintiff’s sister-in-law sent a Facebook email to the engagement party guests to request a statement of what they witnessed that evening. However, her email requested that the guests state that plaintiff was not intoxicated at the time of the fall and that he is “a hyper guy who acts all wild and crazy without being drunk… .” No statements from this request were ever produced to defendants. Two years after this email, plaintiff’s sister-in-law again requested statements, but because the direction of the case had changed, her request sought statements indicating that plaintiff was in fact drunk.

Note that reading the sister-in-law’s emails sent to the guests requesting their statements is painful. No attorney ever wants a written word requesting evidence to be tailored to the outcome you desire.

Defendant knew nothing about either of the emails requesting statements or the purported statements until one of the plaintiff’s witnesses was deposed and admitted to sending a statement to plaintiff. Despite this admission and defendant’s subsequent requests to plaintiff to produce the statements, no statements from the first email were produced and only 16 of the 20 from the second email were produced in a piece-meal fashion. The court found plaintiff spoliated evidence as well.

The result of both parties’ spoliation: an adverse inference sanction was granted for defendant’s spoliation of the video and for plaintiff’s spoliation of the statements from the earlier email request. Plaintiff was also sanctioned for defendant’s costs for the original requests for production as well as re-deposing witnesses.
And so the lessons to be learned? Make sure you halt routine destruction of evidence. This cannot be emphasized enough. Additionally, if you are advising your clients on a suit, don’t let them create evidence that could impact the case. It should go without stating that you should not let your witnesses fabricate evidence either, but it never hurts to remind some attorneys.