It’s eDiscovery case law day!  In Via Vadis, LLC v. Amazon.com, Inc., No. 1:14-CV-00813-LY (W.D. Tex. July 23, 2021), Texas Magistrate Judge Susan Hightower granted in part and denied in part the plaintiffs’ Motion to Compel Answers to Interrogatories and Production of Documents and, finding that the defendant replaced data that was spoliated, denied the plaintiffs’ Motion for Spoliation Sanctions, Motion to Compel and Motion for Sanctions for Fees and Costs.

Case Background

In this patent infringement litigation regarding Amazon’s support of the BitTorrent protocol through its software-as-a-service and related services, the plaintiffs sought to compel Amazon to produce the information in four categories:

1. Use and Damages Information, in three categories: (1) total annual number of subscribers/accounts for Amazon’s S3 storage service (Interrogatory No. 7); (2) annual sales volume for storage of data in Amazon S3 for data distributed by BitTorrent (Request for Production No. 9); and (3) Amazon’s Top 20 customers by year (Request for Production No. 30);
2. Amazon’s Custodians, Network Locations Searched, and Search Terms,
3. Source Code, and
4. Tracker and Seeder Logs before October 2020 Subject of Plaintiffs’ Motion for Spoliation.

They also sought to have the Court impose sanctions on Amazon for alleged spoliation.

Judge’s Ruling

With regard to the Use and Damages Information, Amazon produced information showing monthly usage of BitTorrent functionality of Amazon S3 from October 2010 through the present, by account number and also produced information showing all Amazon S3 usage from October 2010 through the present for all accounts that had shown any usage of BitTorrent during that period.  Judge Hightower stated: “To the extent that Plaintiffs move to compel use and damages information concerning Amazon’s S3 storage service not pertaining to BitTorrent, the Court finds such information to be overly broad and not proportional to the needs of this case, pursuant to Rule 26(b)(1).”  Judge Hightower ordered Amazon “to identify by name its top 20 customers by BitTorrent use by year” while denying the request as to the use and damages information identified in Plaintiffs’ Advisory Notice.

With regard to Amazon’s list of custodians, network locations searched, and search terms used, Judge Hightower rejected Amazon’s contentions that its document collection efforts are protected work product and ordered Amazon to “identify the custodians and locations searched in response” to three Requests for Production.

With regard to compelling production of source code, Judge Hightower noted that Amazon produced more than 250 source code files constituting over 2.7 million bytes of data for “tracking of the BitTorrent peers in the swarm (and their locations)”, but objected to production of additional source code, calling it “a massive suite” of general storage code independent of any BitTorrent functionality and “extremely commercially sensitive”.  As a result, Judge Hightower, in denying the request, ruled that “Amazon has shown that this request for production of additional source code is overly broad and not proportional to the needs of this case, pursuant to Rule 26(b)(1).”

With regard to the tracker and seeder logs and the plaintiffs’ motion for spoliation sanctions, the plaintiffs contended that “Amazon intentionally and continuously destroyed substantially all evidence of its use of the BitTorrent protocol for at least six years after this case was filed, thus irreparably impairing Plaintiffs’ case.”  Judge Hightower observed that “to apply Rule 37(e), a court must determine that the following four predicate elements exist:

• there is ESI that should have been 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.”

Noting that “Amazon does not contest the first three predicate elements under Rule 37(e)”, Judge Hightower stated: “Amazon ceased deleting the server logs {in October 2020 when it realized that it needed the logs to identify its revenue tied specifically to customers’ use of BitTorrent} and made them available for inspection by Plaintiffs…Plaintiffs have not asked to inspect the logs…In place of the server logs from before October 2020, Amazon extracted customer usage data from a data warehouse and, two days after Plaintiffs filed their motion for spoliation sanctions, produced that data to Plaintiffs…Amazon states that the data demonstrates that the total revenue Amazon received for the accused BitTorrent-related data requests and transfers from October 2010 to the present is less than $100,000.”

Therefore, Judge Hightower stated, in denying the motion to compel the logs, and the motion for spoliation sanctions: “The Court finds that Amazon has shown that it replaced the relevant data from the server logs, and therefore, Plaintiffs have not satisfied the fourth predicate element for sanctions under Rule 37(e). Because Amazon has established that it has replaced the relevant information, and that the server logs were lost without Amazon’s ‘intent to deprive [Plaintiffs] of the information’s use in the litigation’ under Rule 37(e), Plaintiffs’ motion for spoliation sanctions is denied.”

So, what do you think?  Should replacement of the information in a different form still be considered replacement of the ESI that was requested?  Please share any comments you might have or if you’d like to know more about a particular topic.

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