MALIBU MEDIA, LLC v. DOE

Filing 242

REPORT AND RECOMMENDATIONS re 130 MOTION for Sanctions Against Defendants for Spoliation of Evidence and Perjury filed by MALIBU MEDIA, LLC. Signed by Magistrate Judge Mark J. Dinsmore on 5/18/2015.(MGG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MALIBU MEDIA, LLC,

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Plaintiff,
vs.
KELLEY TASHIRO,
N. CHARLES TASHIRO,
Defendants.

No. 1:13-cv-00205-WTL-MJD

REPORT AND RECOMMENDATION ON PLAINTIFF’S MOTION FOR SANCTIONS
This matter comes before the Court on Plaintiff’s “Motion for Sanctions Against
Defendants for Spoliation of Evidence and Perjury,” [Dkt. 130], and Plaintiff’s “Supplement to
Its Motion for Sanctions Against Defendants for Spoliation of Evidence and Perjury.” [Dkt. 159.]
For the reasons set forth below, the Magistrate Judge recommends that the Court GRANT
Plaintiff’s motion for sanctions. [Dkts. 130 & 159.]
I.

Background

In 2013, Malibu Media, LLC (“Plaintiff”) retained a German company—IPP Limited—to
investigate whether certain internet users were infringing Plaintiff’s copyrights by uploading
and/or downloading its copyrighted adult movies via a BitTorrent client. [See Dkt. 1.] IPP
monitored the BitTorrent file distribution network 1 and identified certain IP addresses 2 that were
being used to distribute Plaintiff’s copyrighted movies. [Dkt. 5-1 ¶¶ 5-7 (Decl. of Tobias Fieser,

1
The monitoring relevant to this case occurred between January 14, 2012 and January 16, 2013. [Hr’g Tr. 12:8-12.]
Plaintiff’s counsel referred to this time as the “period of recorded infringement,” and the Court will adopt that
terminology as necessary.
2
An IP address is a number that an Internet Service Provider (“ISP”) assigns to one of its subscribers. [Dkt. 5-1 ¶ 7.]
The IP address is unique to the subscriber, and the ISP retains records of which subscriber is assigned a given IP
address at particular times. [Id. ¶¶ 8-9.]

1

February 4, 2013).] On February 5, 2013, Plaintiff filed suit against an unidentified defendant,
alleging that the defendant had used a BitTorrent client to infringe the adult movies on Plaintiff’s
X-Art website. [See Dkt. 1.] The individual was initially known only by her IP address—
98.222.184.69—but Plaintiff subpoenaed the alleged infringer’s ISP—Comcast—to determine
that the infringing activity occurred at the address of Kelley Tashiro (“Defendant Kelley”). [See
Dkt. 14.] Plaintiff accordingly filed an amended complaint against Defendant Kelley on April 8,
2013. [Dkt. 13.] Attorney Jonathan Phillips (“Phillips”) entered an appearance on Defendant
Kelley’s behalf. [Dkt. 19.]
Plaintiff further amended its complaint on May 15, 2014. [Dkt. 124.] This amendment
added Defendant Kelley’s husband, N. Charles Tashiro, (“Defendant Charles”), as the second
named defendant in the case. [See id.] Attorney Phillips thereafter began representing both
Defendant Kelley and Defendant Charles. [See, e.g., Dkt. 134.]
Plaintiff’s current motion alleges two types of misconduct: 1) spoliation of evidence
based on Defendants’ alleged deletion of computer files; and 2) perjury in the form of
misrepresentations by Defendants at their depositions and in their responses to various discovery
requests.
A. Deletion of Files
During discovery, Defendant Kelley agreed to provide the computer hard drives from her
household to Quantum Discovery for forensic imaging. [See Dkt. 130 at 3.] She did so on
December 23, 2013, and Quantum Discovery created images of the hard drives on the same day.
[See Dkt 76-1 ¶ 17 (Decl. of Patrick Paige, February 10, 2014).] Quantum Discovery then sent
the images of the hard drives to Plaintiff’s expert witness, Patrick Paige. [Id.] Mr. Paige received
a forensic image of a Western Digital hard drive with serial number WXHZ08077637; a forensic

2

image of a hard drive labelled “int HDD inside usb encl.”; and a forensic image of an iPad hard
drive. [Id. ¶¶ 18-19.] He also reported that Quantum Discovery had received a fourth hard drive
from Defendants’ household, but that the fourth hard drive could not be imaged. [Id. ¶ 20.]
Mr. Paige examined each of the images of the hard drives for evidence of BitTorrent use.
[Id. ¶ 21.] On the “int HDD inside usb encl.” hard drive, Mr. Paige found evidence that the “hard
drive was repeatedly used to download BitTorrent files and also had BitTorrent software
installed on the hard drive.” [Id. ¶ 23.] He also determined that “numerous files and folders
associated with BitTorrent use were deleted from the hard drive on December 22, 2013 at
approximately 10:00 pm—the night before the hard drive was turned over to Quantum Discovery
for imaging.” [Id. ¶ 25 (emphasis original).] Mr. Paige recovered some of the deleted files and
determined that “many of these BitTorrent files [were] associated with adult movies” and that
others were “BitTorrent clients, that enable the BitTorrent protocol to work.” [Id. ¶ 26.] He also
concluded that “Malibu Media, LLC’s copyrighted content could have been deleted from the
drive.” [Id. ¶ 28.] 3
Defendants’ expert, Delvan Neville, also examined Defendants’ hard drives. [See Dkt
101-1 (Decl. of Delvan Neville).] He agreed “with Mr. Paige’s finding that there were many files
and folders deleted on 22 December 2013,” but “dissent[ed] from Mr. Paige’s finding as to
whether any of the deleted files could be Malibu Media, LLC’s copyrighted content.” [Id. ¶¶ 56.] He stated that he recovered all of the deleted files, searched them, and found no evidence that
they contained Plaintiff’s copyrighted content. [Id. ¶¶ 14-24.] Despite Neville’s purported

3

At the hearing, the parties agreed to call the drive from which the files had been deleted the “Stover” drive, [see
Hr’g Tr. 17:8], in reference to a non-party—Ed Stover—who had previously owned the drive. The Magistrate Judge
will use this terminology throughout the remainder of this report.

3

recovery, Plaintiff contends that the above-described deletion constitutes spoliation of evidence,
and Plaintiff asks the Court to enter default judgment against Defendants. [See Dkt. 130.]
B. Defendants’ Alleged Misrepresentations
Plaintiff deposed Defendant Kelley in February 2014. [Dkt. 107-1 (Kelley Tashiro Dep.,
February 25, 2014).] She testified that she had visited adult websites, but she denied searching
for Plaintiff’s X-Art website. [Kelley Tashiro Dep. 52:12-53:23.] In her answers to Plaintiff’s
Interrogatories, Defendant Kelley also denied any knowledge of BitTorrent other than that
gained through this lawsuit. [Dkt. 76-2 ¶ 13.]
Plaintiff also deposed Defendant Kelley’s husband, Defendant Charles. [Dkt 107-2
(Charles Tashiro Dep., February 25, 2014).] He testified that he had used BitTorrent, [Charles
Dep. 26:3-27:13], and that he had visited Plaintiff’s X-Art website. [Charles Dep. 52:23-53:7.]
Thereafter, Plaintiff amended its complaint to add a claim of copyright infringement against
Defendant Charles. [See Dkt. 124.] Plaintiff filed the amended complaint on May 15, 2014. [Id.]
During discovery, Plaintiff also served interrogatories and requests for production on
Defendant Kelley. [See Dkt. 130 at 5.] Plaintiff’s Interrogatory No. 4 asked Defendant Kelley to
identify “each of the Computer Devices used in [her] home during the preceding two years” and
to state “who has been authorized to use the Computer Device, the times during which each such
person was authorized to use the Computer Device, and [the identity of] the person who
primarily uses the Computer Device.” [Dkt. 76-2 ¶ 4.] Defendant Kelley answered the
interrogatories on October 17, 2013 and supplemented her responses on December 31, 2013,
January 16, 2014, and January 19, 2014. [Id. at 10.] Her responses identified four hard drives: a
Dell Inspiron laptop hard drive; an iPad hard drive; a Sony Vaio desktop hard drive; and the
Stover drive. [Id. ¶ 4]

4

This proved to be an incomplete list of the computer drives in Defendants’ home: On
April 8, 2014, Plaintiff’s counsel wrote to attorney Phillips and stated that “it has been brought to
my attention that there are several hard drives/external devices that the defendant failed to
disclose in discovery responses.” [Dkt. 130-3 at 3.] Plaintiff’s counsel specifically identified a
WD 5000AAV External 1.65 hard drive; a WD My Passport 070A 1032 hard drive; and a WDC
WD40 hard drive. [Id.] Plaintiff’s counsel based these identifications on Mr. Paige’s examination
of the image of Defendant Kelley’s laptop. Paige determined that the three drives “were
connected to Kelley Tashiro’s laptop computer” but had not been disclosed to Quantum
Discovery for imaging. [See Dkt. 109-2.] Plaintiff’s counsel also noted that the drives had been
connected in the early morning hours of December 23, 2013—the day the drives were to be
turned over to Quantum Discovery—and stated that these drives should have been disclosed in
response to Plaintiff’s requests for production. [Dkt. 130-3 at 3.]
Attorney Phillips responded to Plaintiff’s letter on the same day. He wrote that Defendant
Kelley “is unaware of these drives,” such that there was “no ‘failure to disclose’” in Defendant
Kelley’s discovery responses. [Id. at 5.] Phillips also stated that his client “connected nothing” to
her computer on the night of December 22, and he suggested the connections were done by
Quantum Discovery. [Id. at 7.] In another email the next day, Phillips maintained that the drives
“were not provided, because they do not exist, or at least to not [sic] known to exist by Kelley
Tashiro.” [Id. at 10.]
The parties later determined that two of the hard drives identified by Plaintiff’s counsel
actually had been produced and had been included in the four hard drives originally provided to
Quantum Discovery. [See Dkt. 137 at 14.] The last of the hard drives, however, had not been
produced, and on May 31, 2014, Defendant submitted a fourth supplement to her response to

5

Plaintiff’s interrogatories. [Dkt 130-2 at 11.] She stated that she “only recently became aware of
an additional external harddrive contained within the [Tashiro] household,” and she said she was
“unaware of the drive’s existence previously.” [Id. at 4.] The additional drive was a “Western
Digital External HD” with serial number WCASUZ940825. [Id. at 4.] Defendant Kelley stated
that her husband was the primary user of the device. [Id.]
Based on the above events, Plaintiff contends that Defendants and their counsel
intentionally misrepresented the number of hard drives in their household in their discovery
responses and in their communications with Plaintiff’s counsel. [Dkt. 130 at 5.] Plaintiff argues
that this constitutes perjury and that default is the only appropriate sanction for the alleged
misconduct. [Id. at 16.]
C. Supplement to Motion for Sanctions
On October 1, 2014, Plaintiff filed its “Supplement to its Motion for Sanctions Against
Defendants for Spoliation of Evidence and Perjury,” [Dkt. 159], and asserted that since the time
of the filing of its original motion, “additional evidence of perjury [had] come to light.” [Id. at 1.]
Plaintiff claimed that additional evidence showed that both Defendant Kelley and Defendant
Charles had committed perjury, and that both Defendants had intentionally withheld evidence.
1. Defendant Kelley
Plaintiff’s Interrogatory No. 11 asked Defendant Kelley to “[i]dentify any
communication you have received from your ISP in the last two years including any changes
regarding the terms of your contract or agreement, and any notices that you have received,
including but not limited to notices of copyright infringement.” [Dkt. 130-2 ¶ 11.] Defendant
Kelly answered: “Yearly updates from Comcast. No other communications other than billings.”
[Id.]

6

Plaintiff’s Request for Production No. 7 similarly asked Defendant Kelley to produce all
documents “referring, relating to, or comprising written communications between you and your
ISP, including all . . . Digital Millennium Copyright Act notices.” [Dkt. 159 at 2.] 4 Defendant
Kelley answered: “Tashiro has no such documents other than those of Response 3-38, 235-286.
In particular, no Digital Millenium [sic] Copyright Act Notices have ever existed.” [Id.]
On August 22, 2014, however, Plaintiff deposed the Tashiros’ Internet Service
Provider—Comcast. [Id.; see also Pl.’s Ex. 50 (Dep. of Colin Padgett, August 22, 2014).] Prior
to the deposition, Comcast produced to Plaintiff seven Digital Millennium Copyright Act notices
that were sent to Defendants. [Dkt. 159 at 2-3.] Plaintiff thus concludes that Defendant Kelley
“provid[ed] knowingly false answers” to Plaintiff’s interrogatories and requests for production,
and thereby committed perjury by failing to disclose the notices of copyright infringement that
she had in fact received. [Id. at 3.]
2. Defendant Charles
Plaintiff deposed Defendant Charles on February 25, 2014. [Id. at 3.] 5 Charles testified
that he used BitTorrent “just for music,” [Charles Dep. 27:12-13], and he specifically denied
using BitTorrent to download other types of media, such as movies. [Charles Dep. 27:6-11.] On
June 18, 2014, however, Plaintiff served Requests for Admission on Defendant Charles, and
Defendant Charles subsequently admitted that he “used BitTorrent to download adult films”
from several different websites. [Dkt. 159 at 3-4.] Plaintiff thus contends that Defendant Charles’

4

Digital Millennium Copyright Act (“DMCA”) notices are communications provided by an ISP to its customer
notifying the customer that the ISP has received a complaint that the customer is engaged in activity that infringes
another person’s copyrights. [See Pl.’s Ex. 50 at 27:22-28:4 (Dep. of Colin Padgett).]
5
Charles was not a Defendant at this time, as it was not until May 15, 2014 that Plaintiff filed the amended
complaint naming Charles as a defendant. [See Dkt. 124.]

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deposition testimony was “an intentional lie” because his own admissions prove he used
BitTorrent “for more than just music.” [Id.]
3. Withholding Evidence
Plaintiff’s supplement accuses Defendants Charles and Kelley of withholding relevant
evidence. As noted above, Plaintiff’s expert stated that three drives had been connected to Kelley
Tashiro’s computer on the night of December 22, 2013 or in the early morning of December 23,
2013, but that the drives were not disclosed to Plaintiff or provided to Quantum Discovery for
forensic imaging. Plaintiff’s counsel then wrote to Defendants’ counsel on April 8, 2014 to
inquire about these drives, which included the Western Digital hard drive described above. As
noted previously, Defendant’s counsel responded that Defendant Kelley was “unaware of these
drives,” and that there was “no ‘failure to disclose’” in Defendant Kelley’s discovery responses.
[Dkt. 130-3 at 5.]
Plaintiff, however, also served requests for admission on Charles Tashiro, in which
Charles admitted that he “used the Western Digital hard drive . . . on December 22, 2013.” [Dkt.
159 at 5.] Plaintiff thus asserts that Charles “used the Western Digital hard drive” on December
22, but then made the “affirmative choice to exclude it and keep it from Plaintiff” by not
providing the hard drive to Quantum Discovery the next day. [Dkt. 159 at 5.] Plaintiff contends
that this constitutes “bad faith,” sanctionable conduct even if Charles himself was not a named
defendant in December of 2013. [Dkt. 161 at 3.]
Plaintiff also adds that it served Requests for Admission on Defendant Kelley. [Dkt. 161
at 2-3.] In her responses, Kelley admitted that—before the Western Digital hard drive was
disclosed to Plaintiff in Defendants’ May 31, 2014 fourth supplement to their responses to
Plaintiff’s interrogatories—Kelley “knew [her] husband owned the Western Digital external hard

8

drive” and had “seen the above hard drive in [her] home.” [Dkt. 161-2 ¶¶ 1-2.] Plaintiff thus
contends that Kelley had no basis for claiming that she was previously unaware of the hard drive
when she responded to Plaintiff’s discovery requests. [See Dkt. 161 at 3.] Plaintiff notes that it is
especially difficult to reconcile Defendant Kelley’s May 31, 2014 Supplement to her response to
Plaintiff’s interrogatories with Defendant Kelley’s later response to Plaintiff’s request for
admissions. In the former, Kelley stated that she “was unaware of the drive’s existence
previously,” [Dkt. 130-2 ¶ 4], but in the latter, she admitted that, “prior to May 31, 2014, [she]
knew that [her] husband owned the Western Digital external hard drive[.]” [Dkt. 161 at 2-3.]
Plaintiff thus asserts that Defendant Kelley perjured herself by falsely responding to Plaintiff’s
interrogatories. [Dkt. 161 at 2.]
D. Hearing and New Counsel
The Court referred Plaintiff’s motion for sanctions to the undersigned Magistrate Judge
for proposed findings and recommendations, [Dkt. 16], and the Magistrate Judge set the matter
for an evidentiary hearing on January 29, 2015. [Dkt. 167.] On the morning of the hearing,
however, attorney Phillips advised the Court that Defendant Charles planned to invoke his Fifth
Amendment rights to avoid testifying. [Dkt. 206.] Phillips concluded that this created a conflict
of interest between Defendants Charles and Kelley, and Phillips committed to withdrawing as
counsel for Charles. [Id.] The Court continued the hearing to allow Defendant Charles to retain
new counsel, which he did on March 2, 2015. [Dkt. 216 (Mot. for Erin Kathryn Russell to
Appear Pro Hac Vice).] With Defendants Charles and Kelley represented by separate counsel,
the Court conducted the evidentiary hearing on April 30, 2015. [Dkt. 239.] The Court then
conducted a supplemental hearing to allow for additional argument by counsel on May 8, 2015.
[Dkt. 241.]

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E. Motions in Limine and Objections
Prior to the April 30 hearing, Defendants filed seven motions in limine in an attempt to
preclude several of Plaintiff’s proposed witnesses from testifying. [See Dkts. 170, 172, 173, 175,
176, 177 & 179.] The Court denied the motions on the grounds that the hearing would involve no
jury, such that preemptively excluding the proposed testimony was unnecessary. [Dkt. 227
(citing In re Salem, 465 F.3d 767, 777 (7th Cir. 2006); Barna v. United States, 183 F.R.D. 235,
239 (N.D. Ill. 1998)).] The Court’s order, however, acknowledged that Defendants would be
permitted to challenge Plaintiff’s witnesses through specific objections at the time of their
proposed testimony.
At the hearing, Defendants objected to testimony offered by Michael Patzer. [See Hr’g
Tr. 197:15-21, Apr. 30, 2015.] The Court took the objection under advisement and allowed
Patzer to testify. [Hr’g Tr. 200:9-10.] Defendants also objected to Plaintiff’s questioning of
Defendant Kelley. [Hr’g Tr. 24-26.] They asserted that certain questions infringed on the marital
communications privilege as asserted by Defendant Charles. [Hr’g Tr. 24:16-18.] The Court
overruled that objection at the time of the hearing, and the Court now addresses both objections
below.
A. Objection to Patzer’s Testimony 6
Michael Patzer is an independent contractor who “designed, implemented, monitor[s] and
maintain[s] the data collection system” that IPP uses to identify the IP addresses of potential
copyright infringers. [Dkt. 73-13 ¶¶ 3-4 (Decl. of Michael Patzer, February 5, 2014).] As

6

The Court addresses Defendants’ objections primarily because the parties devoted considerable time to Patzer’s
testimony both at the hearing and in briefing Defendants’ motion in limine. Patzer’s testimony is also relevant in
assessing Defendants’ motive for concealing evidence. See infra part II.A.2.a. Ultimately, however, the Court finds
that the wealth of other evidence establishing Defendants’ misconduct is sufficient to support an entry of sanctions,
regardless of Patzer’s testimony.

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explained in their motion in limine, Defendants asserted that Patzer would testify as an expert,
but that Plaintiff had violated Fed. R. Civ. P. 26(a)(2) by not properly disclosing his identity or
proposed testimony. [Dkt. 171 at 1.]
Rule 26(a)(2) requires the disclosure of the identity of expert witnesses, see Fed. R. Civ.
P. 26(a)(2)(A), as well as certain information associated with such testimony. See Fed R. Civ. P.
26(a)(2)(B)-(C). Expert witnesses are those who present evidence founded on “scientific,
technical, or other specialized knowledge.” Fed. R. Evid. 702(a). Lay witnesses, in contrast,
present evidence consisting of opinions or inferences “rationally based on the perception of the
witness.” Fed. R. Evid. 701(a).
The Seventh Circuit has addressed the distinction between lay and expert testimony in the
context of police investigations. See, e.g., United States v. Rollins, 544 F.3d 820, 832-33 (7th
Cir. 2008); United States v. Oriedo, 498 F.3d 593, 603 (7th Cir.2007). When an officer’s
testimony is not “limited to what he observed in [a given] search or to other facts derived
exclusively from [the] particular investigation” at issue, and instead involves the officer bringing
his “wealth of experience . . . to bear on those observations,” the testimony is expert testimony.
Oriedo, 498 F.3d at 603. In contrast, when testimony involves only an officer’s “own personal
observations and perceptions derived from [the] particular case” at hand, the testimony is lay
testimony. Rollins, 544 F.3d at 823. Courts have applied a similar distinction in civil cases. See,
e.g., WNS Holdings, LLC v. United Parcel Serv., Inc., No. 08-CV-275-BBC, 2009 WL 2136961,
at *3 (W.D. Wis. July 14, 2009), aff’d, 368 F. App’x 144 (Fed. Cir. 2010) (finding that testimony
arising “solely from [witness’s] personal, first-hand sensory observations” was lay testimony).
In this case, Mr. Patzer first answered foundational questions about the nature of IPP’s
business and the duties of someone in his occupation. [Hr’g Tr. 196:10-197:12; 200:21-201:14.]

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He thus noted that IPP’s 7 primary business is tracking online copyright infringement so that
records of such activities can be given to copyright owners interested in enforcing their rights.
[See, e.g., Hr’g Tr. 201:11-14.] He also stated that he was personally involved in maintaining the
hardware and software that IPP uses to accomplish this task. [Hr’g Tr. 197:1-12.]
Next, Mr. Patzer indicated that IPP maintained the relevant records in the ordinary course
of business, and he answered additional questions designed to show that the records met the
requirements for admission under Federal Rule of Evidence 803(6). [See, e.g., Hr’g Tr. 201:1921.] He then stated that IPP had in its possession records indicating that someone with IP address
98.222.184.69 8 had used a BitTorrent protocol to upload or download pieces of Plaintiff’s
copyrighted movies. [See, e.g., Hr’g Tr. 202:2-3 (“Yes, yes. The IP address is in our records
referring to Malibu Media content, movies.”).] Finally, he described that he had sent those
records to Plaintiff’s expert, Patrick Paige, for later analysis. 9 [Hr’g Tr. 203:12-19.]
Based on the foregoing, Mr. Patzer limited his testimony to his “own personal
observations and perceptions.” Rollins, 544 F.3d at 823. He described only his relationship to
IPP; the nature of his business; and the sorts of records he had obtained while working in that
business. He thus did not have to bring his “wealth of experience . . . to bear” on facts or events
outside of his personal observations, Oriedo, 498 F.3d at 603, such that he was not testifying as
an expert.

7

At times, Patzer referred to “Excipio” rather than “IPP,” but Plaintiff explained that Excipio is a German company
that licenses its systems and servers for use by IPP. [Dkt. 198 at 3.]
8
This IP address corresponds to the IP address identified in Plaintiff’s original complaint, [Dkt. 1-1 at 1], which
Comcast later confirmed was the Tashiros’ IP address. [Pl.’s Ex. 50 at 13:17-14:4 (Dep. of Colin Padgett).]
9
Defendants later challenged the chain of custody of the records, [see, e.g., Hr’g Tr. 219:18-19], but this challenge
affects the weight of Patzer’s testimony, rather than the expert or lay nature of the testimony. Cf. United States v.
Tatum, 548 F.3d 584, 587 (7th Cir. 2008) (challenge to chain of custody affects weight—not admissibility—of
evidence).

12

Further, the fact that Patzer discussed matters that happened to involve technical issues
does not transform his testimony into expert testimony. See, e.g., United States v. Tomkins, No.
07 CR 227, 2012 WL 1357701, at *11 (N.D. Ill. Apr. 19, 2012) (citing Bank of China v. NBM
LLC, 359 F.3d 171, 181 (2d Cir.2004)) (“The fact that [the witness] has specialized knowledge,
or that he carried out the investigation because of that knowledge, does not preclude him from
testifying pursuant to Rule 701, so long as the testimony was based on the investigation and
reflected his investigatory findings and conclusions . . . . Such opinion testimony is admitted not
because of experience, training or specialized knowledge within the realm of an expert, but
because of the particularized knowledge that the witness has by virtue of his position in the
business.”)). Patzer in this case may have had specialized knowledge about the process by which
Defendant Kelley’s IP address was identified, but he gained that knowledge through the
investigation that gave rise to this case, and he conducted that investigation “not because of
experience, training or specialized knowledge within the realm of an expert, but because of . . .
his position in the business” of IPP. Bank of China, 359 F.3d at 181. His testimony therefore was
not expert testimony, and Fed. R. Civ. P. 26(a)(2) accordingly imposed no obligation on Plaintiff
to produce expert reports for Patzer.
Next, even if Patzer was an expert for whom Plaintiff should have provided expert
reports, the Court would not exclude his testimony. Rule 37 provides that a failure to disclose
information under Rule 26(a) prohibits use of a witness “to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P.
37(c)(1) (emphasis added). The district court has broad discretion in deciding whether an error is
harmless or justified, but should consider factors such as “(1) the prejudice or surprise to the
party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3)

13

the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not
disclosing the evidence at an earlier date.” David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir.
2003). As described below, these factors indicate that any failure to disclose Patzer was
harmless, such that his testimony should not be excluded.
First, Plaintiff disclosed to Defendants in February 2014 the substance of Patzer’s
expected testimony. [See Dkt. 73 at 5-8. 10] This gave Defendants over a year before the April
2015 hearing to consider Patzer’s testimony and to depose Patzer if Defendants so desired. The
Court thus finds that the testimony of Patzer presented little risk of surprise to Defendants and
that Defendants had the opportunity to cure any concerns they may have had about the witness’s
testimony. Additionally, the Court sees little risk of prejudice to Defendants’ interests:
Defendants themselves assert that Patzer’s testimony is “irrelevant” to the spoliation and perjury
issues that formed the focus of the hearing, [Dkt. 171 at 4], and although the Court does not
agree with this assessment, 11 it nonetheless rings hollow for Defendants to simultaneously argue
both that the testimony was irrelevant and that the testimony would “greatly” damage their
interests. [See id. at 3.] Finally, the Court finds no “bad faith or willfulness” involved in any lack
of disclosure: As noted above, Plaintiff previously informed Defendant of the substance of
Patzer’s testimony, and Plaintiff also included Mr. Patzer on its list of proposed witnesses for the
hearing. [Dkt. 169 at 2.] This, in turn, precludes a finding that Plaintiff had some sort of “bad
faith” plan to ambush Defendants. See, e.g., Sadowski v. Bombardier Ltd., 539 F.2d 615, 620
(7th Cir. 1976) (finding no “knowing concealment” when “witnesses were listed in the pretrial

10
Docket No. 73 is Plaintiff’s response to Defendants’ previously resolved motion to compel. Among other
information on Mr. Patzer, the response contains a section specifically devoted to Patzer’s testimony. [Dkt. 73 at 7.]
11
Patzer’s testimony about infringement associated with Defendant Kelley’s IP address helps establish that
copyright infringement did in fact occur. As more fully explained below, this sheds light on whether Defendants had
a motive to destroy or conceal evidence, which in turn is relevant to whether their conduct was done in “bad faith,”
as necessary for an imposition of spoliation sanctions.

14

report”). The factors described in David, 324 F.3d at 857, thus support a finding that any lack of
disclosure was harmless, such that the Court need not exclude the testimony of Plaintiff’s
witness. Defendants’ objection to Mr. Patzer’s testimony is accordingly OVERRULED, and the
Court will consider Mr. Patzer’s testimony as necessary in evaluating Plaintiff’s motion for
sanctions.
B. Marital Communications Privilege
Defendant Charles objected that certain questions posed to Defendant Kelley implicated
the martial communications privilege. [Hr’g Tr. 24:16-18.] This privilege applies in both civil
and criminal proceedings. See Stanfield v. Dart, No. 10 C 06569, 2011 WL 5301784, at *1 (N.D.
Ill. Nov. 3, 2011). It belongs to both spouses and thus may be asserted by either spouse. United
States v. Brock, 724 F.3d 817, 820. As a result, one spouse may preclude the other from
testifying on matters within the scope of the marital communications privilege, even if that other
spouse wishes to testify about those matters. See id. Defendant Charles was thus entitled to raise
the martial communications privilege in an attempt to prevent Defendant Kelley from testifying.
The privilege, however, has limits. First, it “applies only to communications made in
confidence between the spouses during a valid marriage. Acts observed by the spouse are not
protected by the communications privilege.” United States v. Lofton, 957 F.2d 476, 477 (7th Cir.
1992); see also Brock, 742 F.3d at 820 (“The marital communications privilege applies even
after the marriage has dissolved, but the protected subject matter includes only what one spouse
communicates to the other, not what one spouse learns about the other in other ways, such as by
observing the other’s actions.”). Second, an exception to the marital communications privilege
exists in cases in which the spouses are joint participants in an alleged crime. United States v.
Darif, 446 F.3d 701, 706 (7th Cir. 2006) (citations and internal quotations omitted) (“The marital

15

communications privilege places a limitation on truthful disclosure. However, we have
recognized an exception to the privilege when spouses are joint participants in the underlying
offense. We do not value criminal collusion between spouses, so any confidential statements
concerning a joint criminal enterprise are not protected by the privilege.”).
The exception for joint misconduct is relevant to Defendant Charles’ assertion of the
privilege in this case. Although Defendants in this case have not been charged with a crime,
Defendants have been accused of jointly participating in discovery misconduct. [See, e.g., Dkts.
130 & 159; see also Hr’g Tr. 19:2-3 (“[T]he evidence will show that they colluded and they were
in cahoots together in suppressing this evidence.”).] Just as the courts “do not value criminal
collusion between spouses,” Darif, 446 F.3d at706, the courts do not value collusion between
spouses to frustrate the discovery process. Such collusion would merely impair this Court’s
important truth-seeking function, and the Court accordingly concludes that the rationale for the
joint criminal conduct exception applies to the Tashiros’ alleged misconduct in this case. As
such, they should not be allowed to preclude inquiry into their misconduct through reliance on
the marital communications privilege.
This expansion of the joint crime exception is also consistent with the treatment of other
privileges. In the context of the attorney-client privilege, for instance, courts have
“demonstrate[d] a judicial willingness to expand the exception” to tortious conduct and
discovery violations. In re Heraeus Kulzer GmbH, No. 3:09-CV-530 RM, 2012 WL 1493883, at
*2 (N.D. Ind. Apr. 26, 2012) (citations omitted); see also, e.g., 1100 W., LLC v. Red Spot Paint
& Varnish Co., No. 1:05-CV-1670-LJM-JMS, 2009 WL 232060, at *4 (S.D. Ind. Jan. 30, 2009)
(applying crime-fraud exception where evidence showed “that [defendant] purposefully
concealed relevant documents during discovery”); Nobelpharma Ab v. Implant Innovations, Inc.,

16

930 F. Supp. 1241, 1260 (N.D. Ill. 1996), aff’d, 141 F.3d 1059 (Fed. Cir. 1998) (emphasis
added) (“The crime-fraud exception to the attorney-client privilege applies when a person
consults an attorney to further a continuing or future crime, fraud or other misconduct.”). These
cases are consistent with the general proposition that evidentiary privileges are “in derogation of
the search for the truth,” and thus must be “construed narrowly.” United States v. Evans, 113
F.3d 1457, 1461 (7th Cir. 1997) (discussing attorney-client privilege); see also United States v.
Nixon, 418 U.S. 683, 710 (1974) “[Privileges] are not lightly created nor expansively construed,
for they are in derogation of the search for truth.”).
Here, the same considerations are relevant. Although the existence of the marital
communications privilege demonstrates the importance of protecting the marital relationship,
that importance has limits: just as courts have narrowly construed the attorney client privilege
and have expansively construed the crime-fraud exception to that privilege, the Court in this case
narrowly construes the marital communications privilege and expansively construes the jointcrime exception to that privilege. Hence, even if Defendants do not face criminal charges, their
joint participation in the alleged misconduct in this case is sufficient to find that they cannot rely
on the marital communications privilege. Just as it did at the hearing, then, the Court
OVERRULES Defendants’ objection to Plaintiff’s questioning of Defendant Kelley. The Court
will accordingly consider Kelley’s testimony as necessary in evaluating Plaintiff’s motion for
sanctions.
II.

Discussion

The Magistrate Judge first addresses Plaintiff’s allegations of spoliation of evidence and
then addresses Plaintiff’s allegations of perjury.

17

A. Spoliation of Evidence
Plaintiff first seeks imposition of sanctions for spoliation of evidence resulting from
Defendants’ deletion of files on December 22, 2013. [Dkt. 130 at 1-3.] A court may impose such
sanctions under Fed. R. Civ. P. 37 or under its own inherent power. See, e.g., REP MCR Realty,
L.L.C. v. Lynch, 363 F. Supp. 2d 984, 998 (N.D. Ill. 2005), aff’d, 200 F. App’x 592 (7th Cir.
2006). Rule 37 applies when a party violates a court order, id., but Plaintiff in this case has not
identified any court order that Defendants have allegedly violated, nor does Plaintiff cite Rule 37
in its motion for sanctions or its supplement. [See Dkts. 130 & 159.] The Magistrate Judge thus
concludes that Plaintiff asks the Court to exercise its inherent powers to sanction Defendant.
Assessing whether spoliation occurred requires a two-part inquiry. First, the Seventh
Circuit has noted that “courts have found a spoliation sanction to be proper only where a party
has a duty to preserve evidence because it knew, or should have known, that litigation was
imminent.” Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008); see also
Norman-Nunnery v. Madison Area Technical Coll., 625 F.3d 422, 429 (7th Cir. 2010) (observing
that plaintiff “fail[ed] every element of the test for the spoliation inference” where evidence was
destroyed “before [defendant] knew or should have known that litigation was imminent”). Thus,
any sanction for spoliation must follow a finding that Defendants were under a duty to preserve
evidence.
Second, a showing of “bad faith” is “a prerequisite to imposing sanctions for the
destruction of evidence.” Trask-Morton, 534 F.3d at 681. “‘[B]ad faith’ means destruction for
the purpose of hiding adverse information.” Mathis v. John Morden Buick, Inc., 136 F.3d 1153,
1155 (7th Cir. 1998); see also Bracey v. Grondin, 712 F.3d 1012, 1019 (7th Cir. 2013), reh’g
denied (May 1, 2013), cert. denied, 134 S. Ct. 900 (2014) (citation omitted) (“A party destroys a

18

document in bad faith when it does so for the purpose of hiding adverse information.”).
Sanctions for spoliation thus may not be imposed simply because evidence was destroyed;
instead, such sanctions are appropriate only if the evidence was destroyed for the purpose of
hiding adverse information. See, e.g., Park v. City of Chicago, 297 F.3d 606, 615 (7th Cir. 2002)
(citation omitted) (“[T]he crucial element is not that evidence was destroyed but rather the reason
for the destruction.”); accord, e.g., F.T.C. v. Asia Pac. Telecom, Inc., 788 F. Supp. 2d 779, 790
(N.D. Ill. 2011) (citations omitted) (“A court’s inherent power to impose spoliation sanctions
arises only if a party destroyed evidence in bad faith. In the context of destroying evidence, ‘bad
faith’ means ‘destruction for the purpose of hiding adverse information.’”). The movant bears the
burden to make this showing. Bracey, 712 F.3d at 1019.
Based on the above authority, Plaintiff must establish 1) that Defendants Kelley and
Charles had a duty to preserve evidence because they knew or should have known that litigation
was imminent; and 2) that while under this duty, Defendants destroyed evidence in bad faith, in
that they did so for the purpose of hiding adverse information.
1. Duty
“A party has a duty to preserve evidence when it knows, or should have known, that
litigation was imminent.” Trask–Morton, 534 F.3d at 681. “At the latest, this duty attaches when
the plaintiff informs the defendant of his potential claim.” Chandler v. Buncich, No. 2:12 CV
175, 2012 WL 4343314, at *1 (N.D. Ind. Sept. 24, 2012). The duty may arise “even prior to the
filing of a complaint as long as it is known that litigation is likely to commence.” MacNeil Auto.
Products, Ltd. v. Cannon Auto. Ltd., 715 F. Supp. 2d 786, 801 (N.D. Ill. 2010).

19

a. Defendant Kelley’s Duty
Plaintiff amended its complaint to name Kelley as a defendant on April 8, 2013. [Dkt.
13.] Kelley was served with the amended complaint on April 28, 2013, [Dkt. 16 at 1], and the
alleged deletion occurred on December 22, 2013. [See, e.g., Dkt. 130 at 3.] Because the duty to
preserve evidence attaches, “at the latest” when “the plaintiff informs the defendant of his
potential claim,” Chandler, 2012 WL 4343314, at *1, Kelley was plainly under a duty to
preserve evidence at the time of the alleged deletion.
b. Defendant Charles’ Duty
Plaintiff amended its complaint to name Charles as a defendant on May 5, 2014. [See
Dkt. 124.] Hence, at the time of the deletion, Charles Tashiro was not a defendant in this action.
Nonetheless, the Court finds that, at the time of the deletion, Charles “knew, or should have
known, that litigation was imminent.” Trask–Morton, 534 F.3d at 681.
In response to Plaintiff’s supplement to its motion for sanctions, Defendant Charles
executed a declaration in which he stated that he was the holder of the Tashiros’ Comcast
account, and that any emails about the account or potential litigation would have been sent to his
email address. [Dkt. 161 ¶¶ 2-4.] He added that he did “not recall receiving any DMCA notices,”
but the deposition testimony from Comcast’s 30(b)(6) confirms that seven such notices were
sent. [See Hr’g Tr. 61:22-63:6; see also Pl.’s Ex. 50 at 29:5-13 (Dep. of Colin Padgett).] Thus,
regardless of whether Charles “recall[ed]” receiving the communications from Comcast, the
repeated notices of infringement sent to his email address should have put him on notice that an
infringement suit was likely, particularly after such a lawsuit was initiated against his wife.
Next, both Defendants “utilized the same internet account at all relevant times,” [Dkt.
161 at 1], and, after the filing of Plaintiff’s original suit, Defendant Kelley “showed [Defendant

20

Charles] a copy of the complaint.” [Hr’g Tr. 72:17-20.] Defendant Charles also admitted 1) that
he used BitTorrent before this lawsuit began, [Dkt. 107-2 at 2 (Charles Dep. 26:7-14)], and 2)
that he had previously visited Plaintiff’s X-Art website. [Charles Dep. 52:22-24.] Thus, at the
time of the deletion, Charles knew that his wife had been sued for infringing the movies on the
same website (X-Art) that he himself had visited; via the same protocol (BitTorrent) that he
himself had used; and by means of the same internet account (the Tashiros’) for which he had
provided the associated email address. A reasonable person in that situation would know that
litigation against him was “likely” to commence, MacNeil, 715 F. Supp. 2d at 801, such that at
the time of the deletion, Defendant Charles had a duty to preserve evidence.
Finally, other courts have noted that the duty to preserve evidence “certainly arises upon
a formal discovery request.” Am. Family Mut. Ins., Co. v. Roth, No. 05 C 3839, 2009 WL
982788, at *11 (N.D. Ill. Feb. 20, 2009). In this case, Plaintiff served its discovery requests on
Defendant Kelley well before December 22, 2013, [see, e.g., Dkt. 76-2 at 10], and Plaintiff
explained that its requests were not limited only to Kelley as an individual. [See, e.g., 161-1 at 3
(defining the terms “you” and “your” to include both the person receiving the request and “any
other person(s) or entity(ies) acting or purporting to act on your behalf or under your control”).]
As explained below, Kelley then delegated to Charles much of the responsibility for responding
to Plaintiff’s discovery requests. See infra part II.A.2.b.ii. Charles was therefore acting on
Kelley’s behalf at the time of the alleged spoliation, such that he was subject to Plaintiff’s
discovery requests. The Court concludes that Plaintiff’s discovery requests, in combination with
the other considerations discussed above, were enough to put Charles on notice that he had a
duty to preserve evidence. This is true regardless of whether Charles was a party to this litigation

21

at that time, see, e.g., Chandler, 2012 WL 4343314, at *1 (noting that duty can arise before filing
of complaint), and Charles is therefore potentially liable for spoliation.
2. Bad-Faith Destruction of Evidence
At the hearing, the parties stipulated that Defendant Charles had deleted files from the
Stover drive before the drive was produced for imaging by Quantum Discovery. [Hr’g Tr. 108:311.] As noted above, however, sanctions for spoliation of evidence can be entered only if the
culpable party destroyed evidence in bad faith. Trask-Morton, 534 F.3d at 681. Bad faith “means
destruction for the purpose of hiding adverse information.” Mathis, 136 F.3d at 1155. In this
case, then, Plaintiff must show bad faith, and thus must establish that Defendants deleted files
“for the purpose of hiding adverse information.” Norman-Nunnery, 625 F.3d at 428. Because it
was Defendant Charles who physically deleted the files, [Hr’g Tr. 108:10-11], the Court first
addresses Defendant Charles’ culpability. The Court then considers whether sanctions against
Defendant Kelley are appropriate.
a. Defendant Charles
Charles stipulated at the hearing that he 1) withheld the Western Digital hard drive from
his wife, such that it was not included in Defendants’ initial responses to Plaintiff’s discovery
requests; and 2) deleted the files from the Stover drive on the night of December 22, 2013. [Hr’g
Tr. 108:3-11.] As part of that stipulation, Plaintiff agreed not to question Charles about the
reason for the deletion. [Hr’g Tr. 108:13-17] The hearing thus did not include any explicit
testimony about whether Charles acted in bad faith when deleting the files.
The lack of such testimony, however, is not dispositive. “‘Bad faith’ is a question of fact
like any other, so the trier of fact is entitled to draw any reasonable inference.” Mathis, 136 F.3d
at 1155; see also Davis v. Carmel Clay Sch., No. 1:11-CV-00771-SEB-DML, 2013 WL

22

5487340, at *6 (S.D. Ind. Sept. 30, 2013) (same). Thus, the Court may infer bad faith from the
circumstances of the destruction of evidence. See Mathis, 136 F.3d at 1155; see also Sokn v.
Fieldcrest Cmty. Unit Sch. Dist. No. 8, No. 10-CV-1122, 2014 WL 201534, at *7 (C.D. Ill. Jan.
17, 2014) (“The way to determine whether evidence was destroyed in order to hide adverse
information is . . . [to] infer bad intent based upon when the destruction occurred in relation to
the destroyer’s knowledge that the evidence was relevant to potential litigation.”). In this case,
the circumstances of the files’ deletion support an inference that Charles acted in bad faith when
he destroyed the files.
First, Defendants had a strong motive to erase the files at issue. This motive arises from
the strength of Plaintiff’s underlying copyright infringement claim and the associated risk of
liability for Defendants. To prevail on their copyright claim, Plaintiff must show “(1) ownership
of a valid copyright; and (2) unauthorized copying of constituent elements of the work that are
original.” Hobbs v. John, 722 F.3d 1089, 1094 (7th Cir. 2013) (quoting Peters v. W., 692 F.3d
629, 632 (7th Cir. 2012)).
Plaintiff established the first element through the parties’ stipulation that Malibu Media
owns the copyrights at issue. [Hr’g Tr. 192:4-6.] Plaintiff then addressed the second element
through its examination of Defendant Charles, during which the following exchange occurred:
Q: Mr. Tashiro, did you intentionally fail to tell the truth during your deposition in
this case?
A: No.
Q: I am sorry, no?
A: What was the question again? I am sorry.
Q: Did you intentionally fail to tell the truth during your deposition in this case?
A Did I intentionally?
Q: Yes.
THE COURT: You can instruct him.
MS. RUSSELL: Your Honor, this is where Mr. Tashiro is fumbling, I believe, to
invoke his Fifth Amendment privilege.
THE WITNESS: That’s correct.
23

MS. RUSSELL: Then you need to say that for the record.
THE WITNESS: I wish to invoke my Fifth Amendment privilege.
BY MR. LIPSCOMB:
Q: Did you intentionally answer any request for admission inaccurately?
A: Yes.
MS. RUSSELL: Mr.—
THE WITNESS: Again, I wish to invoke my Fifth Amendment privilege. Sorry,
Your Honor.
THE COURT: That is all right.
BY MR. LIPSCOMB:
Q: At any time in this case, did you intentionally fail to investigate certain facts so
that you could claim ignorance of them?
A: Again, I wish to assert my Fifth Amendment privilege.
...
Q: Did you agree directly with your wife to hide the truth in this case?
A: Again, I wish to assert my Fifth Amendment privilege.
Q: Did you implicitly agree with your wife to hide the truth in this case?
A: Fifth Amendment privilege.
Q In your deposition, you testified that you had not used BitTorrent except on Ed
Stover’s drives, correct?
A: I assert my Fifth Amendment privilege.
Q: And in your deposition, you said you only used it for certain purposes,
BitTorrent; isn’t that correct?
A: I wish to assert my Fifth Amendment privilege.
Q: Did you ever use BitTorrent to download movies?
A: I wish to assert my Fifth Amendment privilege.
Q: Did you ever use BitTorrent to download adult movies?
A: I wish to assert my Fifth Amendment privilege.
Q: Did you ever use BitTorrent to download music?
A: I wish to assert my Fifth Amendment privilege.
Q: Did you ever use BitTorrent to download Plaintiff’s adult movies?
A: I wish to assert my Fifth Amendment privilege.
Q: Have you turned over all hard drives that were used in your house from
January 12—or 16—what is it, January 14, 2012, to January 16, 2013?
A: I wish to assert my Fifth Amendment privilege.
Q: Did you review the discovery that we propounded—that we sent to your wife?
A: I am sorry. Say it again.
Q: Did you review the interrogatories which are written questions that we sent to
your wife?
A: I wish to assert my Fifth Amendment privilege.
Q: Did you review the request for documents that we sent to your wife?
...
THE WITNESS: I wish to assert my Fifth Amendment privilege.
BY MR. LIPSCOMB:
Q: Did you know at the time she certified that no copyright alert notices had been
received, that you had received them?
24

A: I wish to assert my Fifth Amendment privilege.
Q: Have you ever watched movies that you downloaded via BitTorrent with your
wife?
A: I wish to assert my Fifth Amendment privilege.
Q: Have you ever watched adult movies which you downloaded via BitTorrent
with your wife?
A: I wish to invoke my Fifth Amendment privilege.
Q: Have you ever listened to music which you downloaded via BitTorrent with
your wife?
A: I wish to assert my Fifth Amendment privilege.
MR. LIPSCOMB: May I have one minute?
THE COURT: You may, you may.
MR. LIPSCOMB: One more question on that line.
Thank you, Mr. Cooper.
BY MR. LIPSCOMB:
Q: Did you ever watch Plaintiff’s adult movies that you downloaded via
BitTorrent with your wife?
A: I wish to assert my Fifth Amendment privilege.
[Hr’g Tr. 115:8-121:1.] This colloquy has extensive evidentiary significance. As the Supreme
Court has explained, “the Fifth Amendment does not forbid adverse inferences against parties to
civil actions when they refuse to testify in response to probative evidence offered against them:
the Amendment ‘does not preclude the inference where the privilege is claimed by a party to a
Civil cause.’” Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (quoting 8 J. Wigmore, Evidence
439 (1961)); see also LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 390 (7th Cir. 1995)
(“The rule that adverse inferences may be drawn from Fifth Amendment silence in civil
proceedings has been widely recognized by the circuit courts of appeals, including our own, in
the two decades since Baxter was decided.”).
In this case, then, the Court may infer that, each time Charles invoked his Fifth
Amendment right to silence, the answer that he withheld would have been unfavorable. Thus,
because Charles refused to answer whether he “ever use[d] BitTorrent to download Plaintiff’s
adult movies,” [Hr’g Tr. 118:20-21], the Court may infer that Charles did in fact use BitTorrent
to download Plaintiff’s adult movies. Likewise, because Charles refused to answer whether he
25

“ever watch[ed] Plaintiff’s adult movies that [he] downloaded via BitTorrent,” [Hr’g Tr. 120:24121:1], the Court may infer that Charles did in fact download and watch Plaintiff’s adult movies.
This, in turn, indicates that Charles engaged in “unauthorized copying of constituent elements of
[Plaintiff’s] work.” Hobbs, 722 F.3d at 1094; accord, e.g., Malibu Media, LLC v. Etter, No.
1:12-CV-01115-TWP, 2013 WL 6178626, at *2 (S.D. Ind. Nov. 25, 2013) (acknowledging that
use of BitTorrent can constitutes copyright infringement). As such, Plaintiff put forth evidence
that tended to establish the second and final element of its copyright infringement claim.
Notably, Charles’ silence itself is not enough—standing alone—to infer that Charles
infringed Plaintiff’s copyrighted works. Shortly after deciding Baxter, the Supreme Court noted
that Fifth Amendment silence is “only one of a number of factors to be considered by the finder
of fact in assessing a penalty[.]” Lefkowitz v. Cunningham, 431 U.S. 801, 808 n. 5 (1977). “Thus,
although the Fifth Amendment does not forbid adverse inferences against parties to civil actions
when they refuse to testify in response to probative evidence offered against them, an analysis of
that evidence is nonetheless required.” LaSalle, 54 F.3d 390 (citations and quotation marks
omitted).
Here, however, Charles’ silence was not the only evidence of his liability in Plaintiff’s
underlying copyright infringement case, as Plaintiff bolstered the strength of its infringement
claim through testimony from Michael Patzer. As described above, this witness testified that IPP
had recorded a person with an IP address of 98.222.184.69 engaging in infringing transactions
involving Plaintiff’s copyrighted works. [See, e.g., Hr’g Tr. 202:2-3 (“Yes, yes. The IP address is
in our records referring to Malibu Media content, movies.”).] Because the IP address later proved
to correspond to the Tashiros’ internet account, [see Dkt. 14-2], Patzer’s testimony increased the
likelihood that Defendant Charles had in fact infringed Plaintiff’s copyrights. The Court may

26

thus infer from Mr. Patzer’s testimony and from Defendant Charles’ numerous invocations of his
Fifth Amendment rights that Defendant Charles faced a strong prospect of liability in Plaintiff’s
underlying lawsuit, such that he likely took action to escape that liability. As such, Defendant
Charles likely delated the files from the hard drive for the purpose of hiding adverse evidence,
and his actions were accordingly done in bad faith. See Mathis, 136 F.3d at 1155.
Charles’ invocation of his Fifth Amendment rights in response to other questions also
supports this conclusion. As noted above, Charles refused to answer whether he “intentionally
fail[ed] to investigate certain facts so that [he] could claim ignorance of them,” whether he
“agree[d] with [his] wife to hide the truth in this case,” and whether he “review[ed] the discovery
that [Plaintiff] propounded” upon his wife. [Hr’g Tr. 116, 118-19.] Again, the Court may infer
from this refusal that Charles did in fact refrain from investigating certain facts and did in fact
agree to “hide the truth” in this case. This, in turn, implies that Charles knew or suspected that
Plaintiff would be able to uncover damaging evidence, such that his later decision to withhold
the Western Digital drive and to delete files from the Stover drive was made for the purpose of
hiding that damaging evidence. As a result, Charles’ conduct was done in bad faith, see Mathis,
136 F.3d at 1155, and his conduct is therefore sanctionable.
Next, the timing of the deletion suggests that Charles acted in bad faith. As district courts
have previously observed, the timing of the destruction of evidence can support a finding of bad
faith. See, e.g., Sokn, 2014 WL 201534, at *7 (C.D. Ill. Jan. 17, 2014) (“[A court may] infer bad
intent based upon when the destruction occurred in relation to the destroyer’s knowledge that the
evidence was relevant to potential litigation.”). In this case, the timing of the deletion of files
could hardly be more damning: When Patrick Paige examined the hard drive at issue, he
determined that “numerous files and folders associated with BitTorrent use were deleted from

27

the hard drive on December 22, 2013 at approximately 10:00 pm—the night before the hard
drive was turned over to Quantum Discovery for imaging.” [Dkt. 76-1 ¶ 25 (emphasis original).]
This suggests that Charles was not simply using the hard drive in the normal course of business
when a deletion accidentally occurred; instead, it appears that Charles deleted files in a
calculated attempt to hide adverse evidence at the last instant before the hard drive passed out of
Defendants’ possession. As a result, the timing of the deletions is strong evidence that Charles’
conduct is sanctionable. Accord, e.g., Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497,
504 (D. Md. 2010) (Grimm, Mag. J.) (“The fact that [defendant’s president] undertook to delete
these inculpatory files from his work computer . . . only days before a scheduled imaging of his
work computer’s contents compels the conclusion that he was knowingly engaged in efforts to
destroy evidence that he regarded as harmful to Defendants and beneficial to Plaintiff.”); id. at
510 (“[T]he timing of the bulk of the deletions immediately prior to the scheduled discovery
hearing suggests to me that [defendant’s president] deleted the files to prevent their discovery.”).
Next, the nature of the deleted files also implies that Charles deleted the files to hide
adverse information. Plaintiff’s expert witness examined the hard drive at issue and determined
that “numerous files and folders associated with BitTorrent use” were deleted. [Dkt 76-1 ¶ 25
(emphasis added).] From the deleted files, he “recovered seventy-three (73) BitTorrent files,”
many of which were “associated with adult movies.” [Id. ¶ 26.] Other recovered files included
those that “enable[d] the BitTorrent protocol to work.” [Id.]
Plaintiff’s expert report thus indicates that the files Charles deleted were exactly those
files that exposed him to liability. Plaintiff, that is, accused Defendants of using the BitTorrent
file distribution network to infringe its copyrights in various adult movies, [see Dkt. 124 (Second
Am. Compl.)], and Charles subsequently deleted those files that were “associated with

28

BitTorrent use” and that were “associated with adult movies.” [Dkt. 76-1 ¶¶ 25-26.] This
congruence renders it unlikely that the deletion was merely accidental or negligent; instead, as
Plaintiff notes, the lack of any other “explanation for why only some files were deleted but not
others,” [Dkt. 139 at 3], allows the Court to infer that Defendants intentionally targeted the files
at issue because they contained adverse information. Accord, e.g., Victor Stanley, 269 F.R.D. at
509-10 (discussing names of deleted files and concluding that, “[g]iven the file names, it is
evident that the files were relevant and would have supported Plaintiff’s case, and . . . that
Defendants breached their duty to preserve potentially relevant ESI”). Again, then, the
reasonable conclusion is that Charles’ actions were carried out in bad faith.
Defendants’ expert report does not disturb this conclusion: Defendants note that their
expert allegedly recovered files from the hard drive at issue and found “not a single Malibu
Media related file on that drive.” [Dkt. 137.] This finding, however, does not change the fact that
the recovered files were related to BitTorrent use and were related to adult content of the sort
that Plaintiff produces. [See Dkt. 76-1 ¶¶ 25-26.] Thus, Defendant Charles’ deletion was a
targeted attempt to delete those files that were most incriminating, such that he was trying to
destroy adverse evidence. 12
Next, the Seventh Circuit has previously observed that a party may a resist a finding of
bad faith by establishing alternative explanations for destruction or loss. See, e.g., Rummery v.
Illinois Bell Tel. Co., 250 F.3d 553, 558 (7th Cir. 2001) (noting that “loss or destruction of
records through a business retention-destruction schedule does not impute any bad faith or

12

In addition, as explained more fully infra, the Court finds that Defendants’ expert was not as credible as Plaintiff’s
expert. The Court thus doubts the accuracy of Defendants’ expert’s claim that he was able to recover all files that
Charles deleted. This, in turn, leaves open the possibility that Plaintiff’s copyrighted movies were in fact among the
deleted files. [See Dkt. 76-2 ¶ 28 (Decl. of Pl.’s Expert) (“Malibu Media, LLC’s copyrighted content could have
been deleted from the drive during the Defendant’s mass erasure the night before the computer devices were turned
over to Quantum Discovery.”).]

29

consciousness of guilt”); Mathis, 136 F.3d at 1155 (acknowledging existence of a “competing
explanation” in considering whether loss of evidence was benign). In this case, however,
Defendants offered no evidence of any legitimate reason or pre-existing practice that might have
led to the deletion of the files at issue. Their response to Plaintiff’s motion admits that files were
deleted, [see, e.g., Dkt. 137 at 4], and merely suggests that any deletion was an “accident” or
“negligent.” [Id. at 8.] Defendants do not explain how such an accidental deletion may have
occurred, and at the hearing, Defendant Charles specifically avoided testifying about why the
deletion occurred. [See Hr’g Tr. 108:13-17.] Moreover, Plaintiff notes that there “was no
automatic process in place to erase files” on December 22, 2013, [Dkt. 139 at 3], such that this
case is distinguishable from Rummery, 250 F.3d 553, and other cases, in which pre-existing
document destruction policies precluded a finding of bad faith.
The Court acknowledges that the burden remains on Plaintiff to prove destruction in bad
faith, see Bracey, 712 F.3d at 1019, but the above-described absence of any alternative
explanation for the deletion is nonetheless a factor that weighs against Defendants. See, e.g., S.C.
Johnson & Son, Inc. v. Louisville & Nashville R. Co., 695 F.2d 253, 259 (7th Cir. 1982) (noting
that court may rely on “totality of the circumstances” to infer bad faith). Thus, the lack of any
benign explanation for the deletion of the files—in conjunction with the reasons previously
explained—confirms the Court’s determination that Defendant Charles deleted the files for the
purpose of hiding adverse information. 13 As such, the Court concludes that Defendant Charles
spoiled evidence.

13

The closest Defendants came to asserting an alternative explanation consisted of testimony at the hearing
indicating that Defendant Charles may have been concerned about relinquishing the Western Digital hard drive
because it may have contained explicit pictures and/or video files of Defendants themselves. [See Hr’g Tr. 90:2091:4; see also Hr’g Tr. 102:1-7.] Defendants’ expert Delvan Neville, however, testified to having reviewed every
movie deleted from the hard drive, and he did not reveal the existence of any “home movies” involving the Tashiros.
[Hr’g Tr. 233:1-236:19.] Likewise, Plaintiff’s expert Patrick Paige also failed to note the existence of such movies
among those files that he was able to recover from the drive. [Hr’g Tr. 141:6-144:17.] At a minimum, this

30

Defendants oppose this conclusion on the grounds that no spoliation occurred because all
files that Charles deleted were recoverable. [Dkt. 137 at 4.] They claim that when Charles
deleted the files on December 22, 2013, the files were merely “marked as deleted,” and that they
were still “fully accessible and not destroyed.” [Id. (emphasis original)] They explain that a file
that is “marked” as deleted is recoverable until the file is later overwritten, and they maintain that
none of the deleted files at issue were ever overwritten. [Id. at 5.] They thus argue that—in the
absence of any permanent deletion or loss of files—the Court cannot find that any spoliation
occurred. [See id.]
At the hearing, the parties’ experts presented conflicting testimony about whether the
deleted files were recoverable. Plaintiff’s expert, Patrick Paige, testified that “[t]here were
thousands of files that were overwritten and unrecoverable[.]” [Hr’g Tr. 152:12-13; see also Hr’g
Tr. 154:22-23 (“There were thousands of files that were overwritten.”).] 14 In contrast, Delvan
Neville testified for Defendants that “all of the files that were deleted [were] recoverable,” and
that “none of those files [were] permanently destroyed[.]” [Hr’g Tr. 232:23-233:3.]
The Court finds Patrick Paige’s testimony to be more credible than Delvan Neville’s.
Previously, Plaintiff moved to preclude Neville from testifying on the grounds that Neville was
not an expert in computer forensics. [Dkt. 142] The Court denied that motion, but noted that
Plaintiff would have the opportunity to attack Neville’s credentials and methods at the time that
Neville testified. [See Dkt. 164 at 9.]

demonstrates a clear intent by Defendant Charles to delete far more evidence than any personal content involving
himself and his wife. In addition, it is noteworthy that even though counsel for Defendants notified the Court prior to
the April 30, 2015 evidentiary hearing of the possible existence of explicit material involving the Tashiros,
Defendants to date have not sought a protective order to preclude dissemination of this material, despite the
Magistrate Judge’s invitation for them to do so.
14
Somewhat bewilderingly, Defendant Kelley’s counsel argued at the supplemental hearing that “it is
uncontroverted that [the files at issue] were not actually destroyed.” [Supp. Hr’g 32 Tr. 4-5.] Mr. Phillips may not
care for the substance of Patrick Paige’s testimony, but ignoring the testimony will not make it go away.

31

At the hearing, Plaintiff’s counsel did just that: Plaintiff first established that Neville was
a Ph.D. student in a field unrelated to computer forensics, [Hr’g Tr. 240:3-6], and that Neville
had not studied computer forensics as an undergraduate. [Hr’g Tr. 240:9-11.] Neville then
revealed that his training in computer forensics consisted of a single online course that was
approximately three hours long and that did not involve rigorous evaluation of its participants.
[Hr’g Tr. 240:20-241:4; 242:4-9.] Further, although Neville indicated that he had a background
in computer repair and troubleshooting, this background was not strongly related to computer
forensics. [See, e.g., Hr’g Tr. 241:5-7 (“Q: You have never worked under the supervision of any
other computer forensic expert, have you? A: Correct.”).]
Plaintiff’s expert, in contrast, testified that he was a detective in the Palm Beach County
Sheriff’s Department computer crimes unit from 2000 to 2011. [Hr’g Tr. 132:10-16.] During that
time, he “conduct[ed] forensic computer exams” for the FBI, the Secret Service, the ATF, and
other organizations. [Hr’g Tr. 132:21-133:8.] He also testified that he took “over 400 hours of
courses designed to teach people how to investigate computers,” and that he himself had taught a
number of such courses. [Hr’g Tr. 134:4-10.] Finally, he explained that he had received
numerous awards, including the 2002 and 2007 Department of Justice Outstanding Officer of the
Year awards. [Hr’g Tr. 134:25-135:16.]
Based on the relative credentials of the parties’ experts, the Court concludes that Patrick
Paige’s testimony is more accurate and more credible. As such, the Court finds it highly likely
that thousands of files were deleted and were unrecoverable. This confirms that Defendant
Charles did not temporarily delete relevant evidence; instead, he permanently destroyed that
evidence. As a result, Charles is liable for spoliation.

32

Next, even if the files that Charles deleted had been recoverable, this would not absolve
Charles of liability. At the outset, the Court acknowledges that certain cases in this Circuit
seemingly indicate that a permanent loss of evidence is a prerequisite to a finding of spoliation.
In YCB International, Inc. v. UCF Trading Co., the court wrote that the party seeking spoliation
sanctions must “first establish that discoverable information has been lost.” No. 09-CV-7221,
2012 WL 3069683, at *9 (N.D. Ill. June 12, 2012). The Northern District of Indiana then cited
this statement for the proposition that spoliation sanctions were not appropriate where “the
[plaintiffs] were able to recover the [relevant] data,” such that “the evidence [had] not been
destroyed, altered, or spoliated.” Exe v. Fleetwood RV, Inc., No. 1:11-CV-70, 2013 WL
5460293, at *9 (N.D. Ind. July 26, 2013).
The court’s conclusion in Exe misapplies the statement from YCB. The latter case relied
on the Seventh Circuit’s statement that “[s]poliation of evidence occurs when one party destroys
evidence relevant to an issue in the case. Spoliation of evidence does not apply in this case
because the [evidence at issue] shed no light on Smith’s claims[.]” YCB International, 2012
WL 3069683, at *9 (emphasis added) (quoting Smith v. United States, 293 F.3d 984, 988 (7th
Cir. 2002)). The point in YCB, then, was not that the evidence at issue was recoverable; instead,
the point was that the evidence was not relevant. Indeed, the YCB court even noted that the
overarching spoliation issue was whether the culpable party had “destroyed [relevant emails],
irretrievably or otherwise.” Id. at *9 (emphasis added). The court thus implicitly acknowledged
that—had the destroyed information been relevant—then recovery of that information would not
have precluded a spoliation sanction.
Defendant’s counsel also argued at the supplemental hearing that two other cases—
Bracey v. Grondin, 712 F.3d 1012 (7th Cir. 2013) and Davis v. Carmel Clay Sch., No. 1:11-CV-

33

00771-SEB-MJD, 2013 WL 5487340 (S.D. Ind. Sept. 30, 2013)—support the proposition that
spoliation occurs only if evidence is permanently destroyed. [Supp. Hr’g Tr. 31:14-25.] Neither
case is on point.
In Bracey, the Seventh Circuit discussed spoliation and noted as a general matter that a
party may be entitled to an adverse inference instruction “when a party intentionally destroys
evidence in bad faith.” 712 F.3d at 1018. It added that “[w]hen considering the propriety of such
an adverse inference instruction, the crucial element is not that the evidence was destroyed but
rather the reason for the destruction.” Id. at 1019 (alteration and quotation marks omitted). From
these statements, Defendants apparently conclude that permanent destruction is a necessary
prerequisite for spoliation, but this reads the case too broadly: the relevant evidence in Bracey—
a portion of video footage—had unquestionably been permanently destroyed, see id. at 1015
(noting that footage had been overwritten), and so the Seventh Circuit had no cause to consider
whether spoliation sanctions would have been appropriate had the footage been recovered. The
mere fact that permanent destruction was sufficient for spoliation in Bracey does not establish
that permanent destruction is necessary for spoliation in other cases.
Davis v. Carmel Clay Schools is also inapposite. There, the court briefly noted that
certain allegedly deleted video footage had been recovered, 2013 WL 5487340, at *5, but the
court ultimately determined that no spoliation had occurred because the moving party had put
forth no evidence of bad faith. Id. at *7. Thus, Defendants may adamantly assert that Davis
proves that permanent destruction is a necessary prerequisite for spoliation, [Supp. Hr’g. Tr.
31:24-32:3], but nowhere in Davis did the court rely on this proposition for its conclusion. See
2013 WL 5487340, at *6-7.

34

In addition, other courts have been much more explicit that mere attempts to destroy or
withhold evidence constitute spoliation: as one court has observed, sanctions for “obstructing or
failing to comply with discovery procedures would be hollow indeed if they could be imposed
only on those whose efforts at concealment proved to be successful.” Nittolo v. Brand, 96 F.R.D.
672, 676-77 (S.D.N.Y. 1983). One party “may not properly escape the consequences of his own
wrongful conduct” simply because the other party was “diligent and persistent enough to
overcome the obstacles which he placed in their path.” Id. Thus, even if Plaintiff in this case had
been able to recover all files that Charles deleted, sanctions would still be appropriate. Accord,
e.g., Pac. Coast Marine Windshields Ltd. v. Malibu Boats, LLC, No. 6:12-CV-33-ORL-28DAB,
2012 WL 10817204, at *9 (M.D. Fla. Nov. 30, 2012) (“[D]eleting files on the eve of producing
the hard drive must be sanctioned as a deterrent to others who may contemplate disobeying court
orders and destroying evidence, even if when [sic] the evidence is recoverable[.]”).
Moreover, courts have repeatedly acknowledged that mere deletion of files has
evidentiary ramifications. In Krumwiede v. Brighton Associates, L.L.C., for example, the court
explained that “if a file is moved or read or deleted, the original file entry will be changed” and
“the metadata contained in the entry changes.” No. 05 C 3003, 2006 WL 1308629, at *4 (N.D.
Ill. May 8, 2006). This makes “it impossible to verify that the [deleted] file is identical to the
original, even if the file’s content appears unchanged.” Id. Thus, even if a deleted file is not
permanently unrecoverable, “the changes to the file metadata call the authenticity of the files and
their content into question and make it impossible for [a party] to rely on them.” Id. at * 10.
In this case, then, even if many files on the Stover drive had been recoverable, the
metadata associated with those files would have been altered. This alteration would impede
Plaintiff’s use of those files in proving its underlying claim of copyright infringement, such that

35

sanctions for the alteration of this evidence would be appropriate. See Krumwiede, 2006 WL
1308629, at *10-11; accord, e.g., E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 803 F.
Supp. 2d 469, 482 n.16 (E.D. Va. 2011) (“[I]t is not correct that recovery of a deleted email
forecloses a finding that it had been deleted. The fact of deletion has evidentiary significance,
and [defendant’s expert] is simply wrong in asserting that recovery of a deleted email negates the
fact that it was deleted.”); In re Hitachi Television Optical Block Cases, No. 08CV1746 DMS
NLS, 2011 WL 3563781, at *5 n.7 (S.D. Cal. Aug. 12, 2011) (citation omitted) (“Hitachi takes
great pains to argue that since deletion of the files does not equal complete elimination or
destruction, and the documents were eventually capable of retrieval, there was no spoliation. The
alteration of the document through deletion, however, constitutes spoliation.”).
Next, the Seventh Circuit has implicitly acknowledged that recovery of deleted or
destroyed evidence does not preclude entry of sanctions. As explained in Barnhill v. United
States, some misconduct “may exhibit such flagrant contempt for the court and its processes that
to allow the offending party to continue to invoke the judicial mechanism for its own benefit
would raise concerns about the integrity and credibility of the civil justice system that transcend
the interests of the parties immediately before the court.” 11 F.3d 1360, 1368 (7th Cir. 1993)
(footnote omitted). Thus, a court may use its inherent powers to dismiss a case or enter default
judgment even when the innocent party “incur[s] no real inconvenience” and “suffer[s] no real
prejudice.” Id.
Here, Defendants argue that, because the deleted files were purportedly recoverable,
“Malibu was not prejudiced” and “[t]here was no damage done by the purported spoliation.”
[Dkt. 137 at 10.] As Barnhill indicates, however, the absence of such prejudice is not dispositive.
By attempting to hide or destroy evidence, Defendant Charles attempted to work a fraud on this

36

Court, obstruct Plaintiff’s pursuit of its case, and subvert the judicial process. Defendant Charles’
wrongdoing thus strikes at the “integrity and credibility of the civil justice system,” 11 F.3d at
1368, and so even if Charles’ conduct had not harmed Plaintiff, the Court would not allow his
attempted fraud to go unpunished.
Finally, the Court’s conclusion is consistent with the general principles underlying
litigation in the federal courts. Discovery in the federal system is intended “make a trial less a
game of blind man’s bluff and more a fair contest with the basic issues and facts disclosed to the
fullest practicable extent.” United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958)
(emphasis added). The rules governing discovery contemplate that parties will “obtain the fullest
possible knowledge of the issues and facts before trial,” such that “civil trials in the federal
courts no longer need be carried on in the dark.” Hickman v. Taylor, 329 U.S. 495, 501 (1947).
Charles’ conduct is simply not consistent with these principles. By deleting files from the
Stover drive, Charles chose to conceal—not disclose—potentially relevant information. And by
doing so, Charles deprived Plaintiff of the ability to gain the “fullest possible knowledge” of the
facts relevant to Plaintiff’s underlying copyright claim. Charles thus flouted the important
principles underpinning litigation carried on before this Court and other courts in the federal
system, and his decision to do so cannot go unpunished.
b. Defendant Kelley
The Court now considers Defendant Kelley’s culpability in the above-described
misconduct. Defendant Kelley’s liability arises from two sources. First, Defendant Kelley’s
failure to investigate her responses to Plaintiff’s discovery requests constitutes sanctionable
conduct regardless of any spoliation of evidence. Second, Defendant Charles’ misconduct is
attributable to Kelley, such that Charles’ misconduct warrants sanctions against Kelley as well.

37

i.

Failure to investigate

A party has a duty to reasonably investigate whether responses to an opposing party’s
discovery requests are complete. Fautek v. Montgomery Ward & Co., 96 F.R.D. 141, 145 (N.D.
Ill. 1982) (“[The Rules of Civil Procedure] require[] that parties take reasonable steps to ensure
that their responses to requests to produce are complete and accurate.”); see also Novelty, Inc. v.
Mountain View Mktg., Inc., 265 F.R.D. 370, 376 (S.D. Ind. 2009) (same); accord, e.g., 3M
Innovative Properties Co. v. Tomar Electronics, No. CIV 05-756 MJD/AJB, 2006 WL 2670038,
at *6 (D. Minn. Sept. 18, 2006) (“In light of the Supreme Court’s directive that discovery under
the federal rules requires a complete disclosure of relevant facts known to the parties, parties are
under a duty to complete a reasonable investigation when presented with the opposing party’s
interrogatories and document requests.”); Smithfield Bus. Park, LLC v. SLR Int’l Corp., No.
5:12-CV-00282-F, 2013 WL 5705601, at *4 (E.D.N.C. Oct. 18, 2013) (same). When a party fails
to fulfill these obligations, the Court may use its inherent power to enter appropriate sanctions.
See, e.g., Armstrong v. Amstead Indus., Inc., No. 01 C 2963, 2004 WL 1497779, at *2 (N.D. Ill.
July 2, 2004) (citation and quotation marks omitted) (“Courts have an inherent power to sanction
a range of litigation abuses—including discovery abuses—to ensure the orderly and expeditious
disposition of cases.”); accord, e.g., 3M Innovative Properties, 2006 WL 2670038, at *6 (finding
that sanctions were appropriate where, inter alia, party “presented no evidence . . . that it [had]
conducted a reasonable investigation for responsive information or documents”).
In this case, Defendant Kelley was under an obligation to reasonably investigate whether
her responses to Plaintiff’s interrogatories and requests for production were complete. At the
hearing, however, the following exchange took place:
Q: Did you investigate whether your answers to your interrogatories were truthful
prior to signing them?
38

A: I am not sure I understand. Could you repeat that, please?
Q: Did you investigate whether your answers to your interrogatories were truthful
prior to signing them?
A: No.
Q: You did not investigate?
A: No.
[Hr’g Tr. 14:12-20.] Defendant Kelley’s own counsel tried to clarify these statements, but he
elicited only the following responses:
Q: So the first [question] that I have, you remember [Plaintiff’s counsel] asking
you about whether or not you investigated the interrogatory answers before you
submitted them to, or before they were submitted, sorry, to Malibu Media?
A: Yes.
Q: And you remember stating that you did not investigate?
A: Correct.
Q: What do you mean that you didn’t investigate? Did anyone investigate?
A: No.
Q: Did you consult anyone regarding interrogatory answers besides your own
personal memory?
A: No.
[Hr’g Tr. 89:3-15.] Moreover, as noted above, Plaintiff’s counsel notified Defendants about the
existence of the Western Digital hard drive that had not been disclosed in Defendant Kelley’s
initial answers to Plaintiff’s interrogatories. [See Dkt. 130-3 at 3 (email to attorney Phillips 15).]
Plaintiff’s counsel then inquired about Kelley’s subsequent actions:
Q: Did you look for that drive after we told you that we knew it existed?
A: No.
Q: You performed no search of your house for it at all?
A: No.
[Hr’g Tr. 23:13-17.] Defendant Kelley’s own testimony thus demonstrates that she repeatedly
failed to discharge her duty to reasonably investigate whether her discovery responses were
complete and accurate, and sanctions against Kelley are therefore appropriate. See, e.g., 3M
Innovative Properties, 2006 WL 2670038, at *6; see also Morris v. McMaster-Carr Supply Co.,

15

Phillips later represented to the Court that he communicated this notification to Defendant Kelley. [Supp. Hr’g Tr.
47:22-48:4.]

39

No. 01 C 6349, 2002 WL 1290390, at *2 (N.D. Ill. June 10, 2002) (“Parties must take reasonable
steps to ensure that they provide complete and accurate information in discovery. So negligence
or inadvertence, not just bad faith or willfulness, is sanctionable.”).
Additionally, Kelley’s failure to investigate was especially egregious in light of her
attorney’s 16 representations to the contrary. In October 2013, Plaintiff’s counsel informed
attorney Phillips that Kelley’s discovery responses were overdue. [Dkt. 130-3 at 1.] Phillips
responded by stating that the delay occurred because he was waiting to “hear back [from his
client] to ensure the responses were 100% accurate.” [Id. (emphasis original).] In April 2014,
Plaintiff’s counsel informed attorney Phillips that Plaintiff had learned of the existence of the
undisclosed Western Digital hard drive. [Id. at 5.] Phillips responded that “[m]y client is unaware
of these drives, so there is no ‘failure to disclose.’ We have listed all devices in the home, or used
by my client, per the interrogatories.” [Id. (emphasis original).] As is now clear, however,
Kelley’s responses were not “100% accurate” and there was a “failure to disclose.” Kelley thus
compounded her failure to investigate her discovery responses by misrepresenting—through her
attorney—the efforts she had undertaken to ensure the accuracy of those responses. These
misrepresentations are hardly consistent with a party’s duties to investigate and disclose relevant
facts, confirming that sanctions against Kelley are appropriate.
ii.

Attribution of Charles’ Misconduct

A party to litigation is generally responsible for the acts or omissions of his agents. As
courts have repeatedly noted, for instance, “clients may be held responsible for the acts and

16

As explained more fully below, the actions of an agent—such as a party’s attorney—are attributable to the party
itself. See, e.g., Link v. Wabash R. Co., 370 U.S. 626, 634 (1962). It is therefore appropriate to consider attorney
Phillips’ representations in assessing Defendant Kelley’s misconduct. In addition, Kelley herself claimed at the
hearing that she was “trying to ensure [her] discovery was 100 percent accurate.” [Hr’g Tr. 67:10-12.] Her conduct
is thus also inconsistent with her own representations.

40

omissions of their chosen counsel.” Sun v. Bd. of Trustees of Univ. of Illinois, 229 F.R.D. 584,
590 (C.D. Ill. 2005), aff’d sub nom. Sun v. Bd. of Trustees of Univ. of IL, 473 F.3d 799 (7th Cir.
2007) (quoting In re Telesphere Communications, Inc., 177 F.3d 612, 617 (7th Cir.1999)); see
also Ball v. City of Chicago, 2 F.3d 752, 756 (7th Cir. 1993) (“[T]he sins of the agent can be
visited upon the principal.”); Harrington v. City of Chicago, 2004 WL 2973750, at *4 (N.D. Ill.
2004) (“[C]lients are held accountable for the acts and omissions of their attorneys.”). Similarly,
a corporate party is liable for the misconduct of its employees or officers. See, e.g. Hogue v.
Fruehauf Corp., 151 F.R.D. 635, 639-40 (C.D. Ill. 1993) (“The Court imposes the sanction of
default judgment on the issue of liability . . . to penalize the officers and employees of Fruehauf
whose conduct may be deemed to warrant such a sanction against the corporation[.]”); Fautek v.
Montgomery Ward & Co., 96 F.R.D. 141, 146 (N.D. Ill. 1982) (finding that sanctions were
appropriate when “defendant, through its agents, supplied counsel with misinformation in
response to plaintiffs’ requests to produce”).
This principle, however, is not limited to the attorney-client or employer-employee
relationship. In Margoles v. Johns, the Seventh Circuit considered a case in which Milton
Margoles sued Alida Johns for defamation. 587 F.2d 885, 886 (7th Cir. 1978). The defendant
requested numerous documents, and Milton Margoles “turned over to his son the basic task of
producing the requested documents.” Id. at 888. The son failed to meet the deadline for
production, and the district court ultimately dismissed the case because of the son’s dilatory
conduct. Id. at 887. On appeal, the Seventh Circuit affirmed: it noted that the son was essentially
“the ‘alter ego’ of his father for purposes of documentary production,” and so even if the son was
a non-party, “the district court was amply justified in treating the failure of the son as that of the
plaintiff.” Id. at 888.

41

The facts of the current case are analogous. Although Defendant Kelley was the only
named defendant at the time of the initial decision to withhold the Western Digital drive and
delete files from the Stover drive, Kelley’s own testimony indicates that she had “turned over to
[her husband] the basic task of producing the requested documents.” Id. at 888. At the hearing,
the following exchange occurred:
Q: Okay. Now you said when [Plaintiff’s counsel] was asking you a series of
questions that you didn’t actually look for the drives when they were gathered up;
is that correct?
A: Correct.
Q: Can you tell me why that is?
A: I trust my husband to gather them.
Q: So you, if you trust your husband to gather them, is it fair to say that you
tasked your husband with gathering them up?
A: Yes.
Q: Why would your husband be more qualified to gather them up than you?
A: I had no idea where they were.
[Hr’g Tr. 91:5-17.] Thus, just as the plaintiff in Margoles left it to his agent—his son—to
respond to the opposing party’s document requests, Defendant Kelley in this case left it to her
agent—her husband—to respond to Plaintiff’s document requests. 17 And, just as it was
appropriate to sanction the party for the agent’s misconduct in Margoles, it is appropriate to
sanction Kelley for her agent’s misconduct in this case. 18 Ultimately, then, Kelley cannot escape
liability for Charles’ misconduct. A party is liable for his agent’s discovery misconduct—

17

At the supplemental hearing, Plaintiff’s own counsel confirmed that Charles was acting as Kelley’s agent at the
time of the discovery responses. [See Supp. Hr’g Tr. 29:11-20 (emphasis added) (“Perhaps Kelley was foolish or
unwise to rely on her husband. . . . I am not a married man, but it is my understanding you generally trust your
spouse. So when she tasked [Charles] with doing something, you know, what she said at the hearing under
aggressive questioning, whether or not she investigated, clearly she did. She had Charles go get hard drives for
her because he actually knew where they were.”).]
18
In dismissing the plaintiff’s complaint, the district court in Margoles noted that the son had been specifically
informed of the deadline for responding to the document requests. Id. at 888. Whether Defendant Charles in this
case possessed such specific information is unclear, but the court in Margoles considered the son’s knowledge only
in finding that his discovery misconduct was done willfully—that is, the information was relevant only to the son’s
mental state. Id. Here, the Court has already found that Charles acted in bad faith, and so whether Charles was
specifically informed about the nature of the requests is irrelevant to the applicability of Margoles.

42

whether that agent is an attorney, an employee or, as in this case, a family member—and
sanctions are therefore warranted against Defendant Kelley.
Defendant Charles’ testimony also supports this conclusion. As noted above, Charles
refused to answer whether he “agree[d] directly with [his] wife to hide the truth in this case,” and
whether he “implicitly agree[d] with [his] wife to hide the truth in this case.” [Hr’g Tr. 118:2-7.]
Charles’ refusal to answer these questions supports an inference that he himself engaged in
conduct designed to hide the truth in this case. See Baxter, 425 U.S. at 318. In some
circumstances, however, a witness’s refusal allows an additional adverse inference against
parties other than the witness. See, e.g., Kontos v. Kontos, 968 F. Supp. 400, 406 (S.D. Ind. 1997)
(“Several circuit courts have held that in certain circumstances a nonparty witness’s invocation
of her right not to testify is admissible and an adverse inference against a party may be drawn
from the nonparty’s witness’s refusal to testify.”).
To support this extension of the inference, “the party seeking to use the invocation must
establish some relationship of loyalty between the other two parties.” Bd. of Trustees of
Ironworkers Local No. 498 Pension Fund v. Nationwide Life Ins. Co., No. 04 C 821, 2005 WL
711977, at *12 (N.D. Ill. Mar. 28, 2005). This relationship may arise “where there is a close
family or business relationship between the person who exercised the Fifth Amendment right and
the individual against whom an adverse inference is drawn,” or where the interests of the parties
in question are closely aligned. State Farm Mut. Auto. Ins. Co. v. Abrams, No. 96 C 6365, 2000
WL 574466, at *6 (N.D. Ill. May 11, 2000); see also Sebastian v. City of Chicago, No. 05 C
2077, 2008 WL 2875255, at *33 (N.D. Ill. July 24, 2008) (“Most courts that have imputed an
adverse Fifth Amendment inference from a nonparty to a party have done so where there is a
close family relationship between the party and the nonparty or a business relationship, such as

43

an agency or employer-employee relationship.”). More generally, courts assessing whether to
impute the adverse inference consider factors such as:
(1) the nature of the relationships at issue (“The closer the bond, whether by
reason of blood, friendship or business, the less likely the non-party witness
would be to render testimony in order to damage the relationship.”); (2) the
degree of control the party has over the non-party witness; (3) the compatibility of
the interests of the party and non-party witnesses in the outcome of the litigation;
and (4) the role of the invoker in the litigation. The “overarching concern” in
assessing the propriety of drawing a negative inference from assertion of the Fifth
Amendment privilege by a non-party is “whether the adverse inference is
trustworthy under all of the circumstances and will advance the search for the
truth.”
Abrams, 2000 WL 574466, at *5-6 (quoting LiButti v. United States, 107 F.3d 110, 123-24 (2d
Cir. 1997)).
In this case, the Tashiros plainly share a close family relationship by virtue of their
marriage, and that bond has remained strong even throughout this litigation. [See, e.g., Hr’g Tr.
28:12-13.] In addition, the Tashiros’ interests are aligned: as husband and wife, a judgment or
monetary sanction against one spouse would necessarily harm the financial interests of the other
spouse. [See, e.g., Hr’g Tr. 65:21-22 (noting that Tashiros have a joint bank account); see also
Supp. Hr’g Tr. 33:19-20 (“Again, I only point this out because a sanction against Charles, of
course, would affect my client”).] Finally, the Tashiros’ attempt to assert the marital
communications privilege, [Hr’g Tr. 24:7-18], indicates that they value their marriage and would
prefer to avoid testifying in a way that would harm their relationship.
Based on these considerations, the Court concludes that the Tashiros have the sort of
“close family relationship,” Sebastian, 2008 WL 2875255, at *33, that would support extending
a Fifth Amendment adverse inference from one party to another. Thus, when Plaintiff’s counsel
asked whether Charles had agreed with his wife to hide the truth in this case, the Court may infer
that Charles refused to answer not only to protect himself, but also to protect his wife. See
44

Abrams, 2000 WL 574466, at *7. Defendant Charles’ refusal to answer therefore supports an
inference that Defendant Kelley agreed with Charles to hide the truth in this case. This confirms
the previous conclusion that Kelley was also culpable in the Defendants’ discovery misconduct,
such that sanctions against Kelley are appropriate. 19
B. Perjury
Plaintiff contends Defendants committed perjury when Defendant Kelley misrepresented
the number of hard drives in her home and failed to produce them, [Dkt 130 at 13], and in
particular when she did not disclose the Western Digital hard drive. [See Dkt. 161 at 2.] Plaintiff
also asserts that Defendants perjured themselves when Defendant Kelley lied about the receipt of
DMCA copyright infringement notices, [Dkt. 159 at 2], and when Defendant Charles lied about
the extent of his BitTorrent use. [Id. at 3.] The Court must first apply the relevant definition of
perjury and then assess whether Plaintiff’s requested sanction of default is appropriate. See
Montano v. City of Chicago, 535 F.3d 558, 564 (7th Cir. 2008) (“The first flaw in the district
judge’s reasoning is that he failed to apply or even identify any legal definition of perjury.”).
1. Definition of Perjury
Perjury in the criminal context consists of “false testimony concerning a material matter
with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or
faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94 (1993) (citing 18 U.S.C. § 1621).
The offense thus requires three elements: 1) “false testimony;” 2) “materiality;” and 3) “willful
intent.” United States v. Savage, 505 F.3d 754, 763 (7th Cir. 2007). The Seventh Circuit has

19

Again, the Court notes that a Fifth Amendment adverse inference is not sufficient, in and of itself, to impose a
penalty on a litigant. See Lefkowitz, 431 U.S. at 808 n.5. As explained above, however, sanctions against Kelley are
appropriate not only because of Charles’ refusal to testify, but also because Kelley herself failed to investigate
whether her discovery responses were accurate. See supra part II.A.2.b.i. In addition, Kelley also perjured herself,
see infra part II.B.2, which would again support an imposition of sanctions independent of Charles’ Fifth
Amendment invocation. See, e.g., ABF Freight Sys., Inc. v. N.L.R.B., 510 U.S. 317, 323 (1994) (“Perjury should be
severely sanctioned in appropriate cases.”).

45

applied this definition when considering litigation sanctions in civil cases, see, e.g., Montano,
535 F.3d at 564, and the Magistrate Judge will accordingly apply that definition in this case.
The first element, false testimony, requires a false statement made “under oath or
affirmation” and given “at trial or in an affidavit or deposition.” See Zeigler Coal Co. v. Dir.,
Office of Workers’ Comp. Programs, 326 F.3d 894, 901 n.7 (7th Cir. 2003) (citing Black's Law
Dictionary 1485 (7th ed.1999)). Providing “[k]nowingly incomplete and misleading answers to
written interrogatories” can satisfy this element. See Dotson v. Bravo, 202 F.R.D. 559, 567 (N.D.
Ill. 2001), aff’d, 321 F.3d 663 (7th Cir. 2003); see also Villareal v. El Chile, Inc., 266 F.R.D.
207, 211 (N.D. Ill. 2010) (answers to interrogatories are “nothing short of testimony”).
The second element, materiality, requires that the false statement have a “natural
tendency to influence” or be “capable of influencing” the decision-maker to whom it is
addressed. Alexander v. Caraustar Indus., Inc., 930 F. Supp. 2d 947, 957 (N.D. Ill. 2013). The
statement must be material at the time it is made, and need not actually affect any resulting
decision. Id.
The third element, intent, may be inferred from the circumstances, but “inconsistencies
alone do not in every instance support an inference of intent to testify falsely.” Montano, 535
F.3d at 564. A lack of any “plausible explanation for the differences between” a party’s
statements may support an inference of intent to lie, see Alexander, 930 F. Supp. 2d at 961, but
in some circumstances, “other evidence” may be necessary for the Court to determine that parties
“deliberately fabricated their testimony.” Montano, 535 F.3d at 564. The Court now considers
whether any of Plaintiff’s alleged instances of perjury satisfy the above-described elements.
2. Alleged Misrepresentations About Hard Drives
Plaintiff’s interrogatories instructed Defendant Kelley as follows:

46

Identify by brand, trademark, model number, version and by any other relevant
form of identifier each of the Computer Devices used in your home during the
preceding two years and for each such Computer Device, state when it was
purchased, from where it was purchased, who is authorized to use the Computer
Device, who has been authorized to use the Computer Device, the times during
which each such person was authorized to use the Computer Device, and identify
the person who primarily uses the Computer Device.
[Dkt. 130-2 at 3. (Interrogatory No. 4).] Defendant Kelley answered on October 17, 2013 and
supplemented her answers on December 31, 2013; on January 16, 2014; and on January 19,
2014. [Id. at 11.] Her responses indicated that only four computer devices had been used in the
Tashiro household in the previous two years. [See id. at 3.]
On May 31, 2014, Kelley served a fourth supplement to her interrogatory answers. [Id. at
11.] At this time, she disclosed the existence of the Western Digital hard drive, and she stated
that she “only recently became aware of [it]” because Charles—rather than Kelley—was the
drive’s primary user. [Id. at 4.] Plaintiff’s motion claims that Kelley was aware of the Western
Digital drive prior to this last supplement, such that her earlier answers to Plaintiff’s
interrogatories were materially false. [Dkt. 161 at 2.]
Plaintiff relies largely on Kelley’s answers to Plaintiff’s later requests for admission. [See
id.] In her responses to these requests, Kelley admitted that she was aware of the Western Digital
hard drive prior to the May 31, 2014 supplement, [id. at 2-3], and Plaintiff thus concludes that
Kelley must have made the deliberate decision to omit the drive from her earlier interrogatory
answers. [See id.]
At the hearing, however, Kelley testified that the she “first became aware of [the Western
Digital] hard drive [on] May 22, 2014,” [Hr’g Tr. 90:8-11], and that prior to that time, Defendant
Charles had withheld the drive’s existence from her. [Hr’g Tr. 90:12-22.] This testimony
indicates that Kelley’s interrogatory answers are not inconsistent with her later response to the

47

request for admissions: the initial interrogatory answers and the first three supplements all predated May 22, 2014, and so at the time of these responses, Kelley did not know about the
Western Digital hard drive. Thus Kelley did not intentionally omit the drive’s existence in these
responses.
At the same time, however, the date on which Kelley learned of the drive—May 22,
2014—obviously pre-dated the May 31, 2014 date indicated in Plaintiff’s requests for
admissions. Thus, even if Kelley had no knowledge of the drive at the time of her earlier
interrogatory responses, she was still required to admit that she did have knowledge of the drive
before May 31, 2014. This explanation resolves any apparent inconsistency in Kelley’s discovery
responses, and it indicates that she did not intentionally omit the drive’s existence in her earlier
responses. Her interrogatory answers regarding the Western Digital drive therefore do not
constitute perjury.
Apart from the Western Digital hard drive, however, it emerged at the hearing that
Defendants had withheld the existence of another computer: a Dell XPS 600. Defendants did not
divulge the existence of this computer in their initial answers to Plaintiff’s interrogatories, nor in
their supplements to those interrogatories, [see Dkt. 130-2 at 3-4], and in fact, Plaintiff
apparently became aware of the XPS 600 only shortly before the hearing. [Hr’g Tr. 124:11-17;
see also Supp. Hr’g Tr. 48:17-22.] Nonetheless, Defendant Kelley testified that the computer
was in the Defendants’ household until the spring or summer of 2012. [Hr’g Tr. at 44:15-23.]
She added that Defendant Charles “predominantly used” this computer, [Hr’g Tr. at 44:24-25],
but that she herself sometimes accessed the computer’s files as well. [See Hr’g Tr. 95:7-97:3.]
Kelley’s own testimony thus indicates that the Dell XPS 600 was “used in [her] home
during,” [Dkt. 130-2 at 3 (Interrogatory No. 4)], during the two years before the interrogatories

48

were propounded. The Dell XPS 600 therefore should have been disclosed in Kelley’s answers
to Plaintiff’s interrogatories. 20 This, in turn, establishes that Kelley’s answers were in fact
“false,” such that her answers may support a finding that she committed perjury. See Dotson, 202
F.R.D. at 567 (“incomplete and misleading” interrogatory answers may constitute perjury).
Kelley’s failure to disclose the Dell XPS 600 was also “material.” As noted above, a false
statement or omission is “material” if it has a “natural tendency to influence” or to be “capable of
influencing” the decision-maker to whom it is addressed. Alexander, 930 F. Supp. 2d at 957.
Here, Kelley testified that the Dell XPS 600 was “hit by lightning or fried” sometime in spring or
summer of 2012. [Hr’g Tr. 45:1-4.] She then testified that her husband’s practice was to convert
such damaged computers into storage devices. [Hr’g Tr. 45:6-9.] She maintained that Charles did
not do so with the XPS 600, [Hr’g Tr. 45:10-11], but she conceded that the computer could have
been used during the period of recorded infringement, [Hr’g Tr. 45:18-23], and she conceded
that she did not know whether the computer’s hard drive had BitTorrent files on it. [Hr’g Tr.
46:11-17.]
Knowing such information naturally would have affected Plaintiff’s strategy in this case.
Had Plaintiff known about the XPS 600, Plaintiff could have deposed Defendants about the
contents of the XPS 600; could have requested that the computer’s hard drive be made available

20

Defendant Kelley contends that her incomplete response was justified because she objected to Interrogatory No. 4
on the grounds that it was vague. [Dkt. 137 at 12-13.] Regardless of that objection, however, Kelley disclosed the
existence of four other computer devices in her initial responses and eventually disclosed the existence of the
Western Digital drive in her fourth supplement. [Dkt 130-2 at 3-4.] She thus apparently did not rely on the objection
to avoid disclosing other computer devices, such that the Dell XPS 600 should also have been disclosed. In addition,
Kelley’s objection was that the interrogatory was “vague” because the term “use” was not defined. [Dkt. 130-2 at 3.]
This term, according to Kelley, could be read broadly to encompass any kind of use—such as passive storage of
material on a hard drive—or could be read narrowly to encompass only more active use—such as “interact[ing]”
with a device by saving or deleting files. [Id.] Here, Kelley was obviously “interacting” with the XPS 600 by
accessing files on it, [see Hr’g Tr. 95:7-97:3], such that the XPS 600 should have been disclosed even if Kelley had
adopted her own more restrictive reading of the term “use.” The objection was thus no basis for concealing the
existence of the XPS 600.

49

for forensic imaging; or otherwise could have investigated whether the XPS 600 was used to
infringe Plaintiff’s copyrighted movies. Moreover, when Plaintiff’s attorney asked Defendant
Charles about the XPS 600, the following exchange occurred:
Q: The Dell XPS 600 had many BitTorrent movies on it, didn’t it?
A: I wish to assert my Fifth Amendment privilege.
Q: The Dell XPS 600 had Plaintiff’s adult movies on it, didn’t it?
A: I wish to assert my Fifth Amendment privilege.
[Hr’g Tr. 122:6-11.] From these responses, the Court may infer that the Dell XPS did in fact
contain evidence that Defendants illegally downloaded Plaintiff’s copyrighted works. See Baxter,
425 U.S. at 318. Because of Kelley’s false interrogatory answers, however, Plaintiff had to
forego any investigation of the XPS 600. As a result, the concealment of the Dell XPS 600
clearly had a material effect on the course of this litigation.
Because the omission of the XPS 600 was “false” and “material,” the only remaining
issue is whether Kelley’s omission was “intentional.” See Savage, 505 F.3d at 763 (listing
elements of perjury). At the hearing, Kelley testified that although Charles was the primary user
of the XPS 600, Kelley herself would often use a file-sharing program to obtain files from that
computer. [Hr’g Tr. at 95:7-97-3.] She was also able to recall that the computer was in use until
spring or summer of 2012, well within the period covered by Plaintiff’s interrogatories. [Hr’g Tr.
44:15-23.] Based on this testimony, it is unlikely that Kelley would simply have forgotten about
the XPS 600 when answering Plaintiff’s interrogatories in 2013, and the Court may thus infer
that Kelley made the intentional decision to omit the XPS 600 from her responses. See Montano,
535 F.2d at 564-65 (noting that intent to lie may be inferred from the circumstances).
Conceivably, of course, Kelley’s decision to omit the XPS 600 could have been the result
of confusion or mistake. Kelley testified that the XPS had been struck by lightning and damaged
in the spring or summer of 2012. [Hr’g Tr. 45:2-3.] She might thus have concluded, albeit
50

erroneously, that the computer would not be of interest to Plaintiff or that any data that had once
been stored on the computer would not be recoverable. In such a case, her mistake would absolve
her of liability for perjury. See Montano, 535 F.3d at 564 (perjury results from “false testimony
concerning a material matter with the willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory”).
This alternative explanation, however, is hardly credible. Rather tellingly, Kelley testified
that, despite the lightning strike, no electronic device in the Tashiros’ home other than the XPS
600 was damaged, [Hr’g Tr. 45:3-5; 100:12-15], and she added that she had never even
discussed the lightning strike with her husband. [Hr’g Tr. 100:16-22.] Then, during Defendant
Charles’ examination, Plaintiff’s counsel asked, “[The Dell XPS 600] was not stricken [sic] by
lightning, was it?” [Hr’g Tr. 126:25.] Charles responded by asserting his Fifth Amendment
privilege. [Hr’g Tr. 127:1.] This, in turn, implies that the alleged lightning strike did not occur,
such that Kelley’s testimony about this event was itself fabricated. It is thus probable that Kelley
did in fact give false testimony, both in deciding to omit the XPS 600 from her interrogatory
responses and in reciting the story of the lightning strike to account for that omission. As a result,
Kelley’s representations regarding the XPS 600 constitute perjury.
Alternatively, even if Kelley did not perjure herself, the events surrounding the XPS 600
merely compound her earlier-described failure to reasonably investigate her responses to
Plaintiff’s interrogatories. As described above, the XPS 600 was a computer device used within
the Tashiros’ household during the period of recorded infringement. It thus fell within the scope
of Plaintiff’s interrogatories, [see Dkt. 130-2 at 3], and it should have been disclosed. Kelley’s
failure to even mention the computer, let alone produce it for imaging, smacks of willful

51

disregard for her duty to investigate her discovery responses, and her conduct is once again
sanctionable. 21
In sum, then, Kelley cannot escape sanctions for her conduct with regard to the Dell XPS
600. At best, her omission of the XPS 600 from her discovery responses resulted from an
egregious failure to reasonably investigate whether her interrogatory answers were complete. At
worst, her failure to include the XPS 600 was a knowing and intentional omission that indicates
that she did in fact commit perjury. See, e.g., Dotson, 202 F.R.D. at 567 (“Knowingly incomplete
and misleading answers to written interrogatories constitute[] perjury[.]”). In either case, these
findings support an imposition of sanctions against Kelley.
3. Alleged Lies about DMCA Notices
Plaintiff alleges that Defendant Kelley perjured herself when she responded to Plaintiff’s
Interrogatory No. 11 and Plaintiff’s Request for Production No. 7. [Dkt. 159 at 2.] These requests
asked whether Kelley had received DMCA copyright infringement notices from Comcast, but
Kelley responded that she had not received such notices. [Dkt. 130-2 ¶ 11; Dkt. 159 at 2.]
Plaintiff explained that it had deposed a representative from Comcast, and that this representative
testified that Comcast had actually sent seven copyright infringement notices to one of
Defendants’ email accounts. [Hr’g Tr. 68:10-13; see also Pl.’s Ex. 50 at 29:5-13 (Dep. of Colin
Padgett).] Plaintiff thus maintains that Kelley’s discovery responses were false. [See Dkt. 159.]
At the hearing, however, Kelley testified that when she subscribed to Comcast, she
provided her husband’s email address. [Hr’g Tr. 69:8-13.] She later added that although she was
occasionally able to see her husband’s emails “[i]f he leaves up his computer with his email

21

Defendants’ counsel make much of the fact that Plaintiff has not been able to locate any of its movies on any of
Defendants’ computer devices. Defendants’ failure to disclose the XPS 600, coupled with Defendant Charles’
deletion of computer files, goes far in explaining Plaintiff’s difficulty in locating evidence of its movies.

52

open,” she generally she did not have access to his account. [Hr’g Tr. 104:5-14.] She further
testified that she was not aware that Comcast had sent the notices to her husband’s account.
[Hr’g Tr. 69:17-23.]
Based on this testimony, the Court finds that Kelley did not intentionally make false
statements in her responses to Plaintiff’s requests for information about the notices. If the notices
were sent to an email account that Kelley did not and could not regularly access, then it is
plausible that she did not know about the emails. Thus, even if her discovery responses regarding
the emails ultimately were not accurate, Kelley did not intentionally falsify the responses, such
that these responses do not constitute perjury.
This finding, of course, does not absolve Kelley of blame. As noted above, a party must
take “reasonable steps” to ensure his or her discovery responses are “complete and accurate.”
Fautek, 96 F.R.D. at 145. Here, Kelley provided Comcast with her husband’s email address
when she set up the Comcast account, [Hr’g Tr. 69:3-13], and it thus would have been a
“reasonable”—indeed, obvious—step in responding to Plaintiff’s requests to ask her husband if
any communications had been sent to that account. Further, the interrogatories served on Kelley
stated as follows: “Identify any communication you have received” from Comcast in the
preceding two years. [Dkt. 130-2 at 7.] The interrogatories defined “you” as both Kelley and
“any other person(s) or entity(ies) acting or purporting to act on [Kelley’s] behalf or under
[Kelley’s] control.” [Dkt. 161-1 at 3.] As described above, Kelley enlisted Charles’ aid in
answering Plaintiff’s discovery requests, and so complying with the directions in the
interrogatories would have required her to ask whether Charles had received any copyright

53

infringement notices from Comcast. That she evidently did not do so confirms once again that
her efforts to comply with her discovery obligations were sanctionably deficient. 22
4. Alleged Lies about Extent of BitTorrent Use
Plaintiff alleges that Defendant Charles lied about the extent of his BitTorrent use when
he testified at his deposition that he used the protocol “just for music” and had never used it to
download other media, such as movies. [See Charles Dep. 27:6-13.] At the hearing, the following
exchange occurred:
Q: Mr. Tashiro, did you intentionally fail to tell the truth during your deposition in
this case?
...
THE WITNESS: I wish to invoke my Fifth Amendment privilege.
...
Q In your deposition, you testified that you had not used BitTorrent except on Ed
Stover’s drives, correct?
A: I assert my Fifth Amendment privilege.
Q: And in your deposition, you said you only used it for certain purposes,
BitTorrent; isn’t that correct?
A: I wish to assert my Fifth Amendment privilege.
Q: Did you ever use BitTorrent to download movies?
A: I wish to assert my Fifth Amendment privilege.
Q: Did you ever use BitTorrent to download adult movies?
A: I wish to assert my Fifth Amendment privilege.
Q: Did you ever use BitTorrent to download music?
A: I wish to assert my Fifth Amendment privilege.
Q: Did you ever use BitTorrent to download Plaintiff’s adult movies?
A: I wish to assert my Fifth Amendment privilege.
...
Q: Have you ever watched movies that you downloaded via BitTorrent with your
wife?
A: I wish to assert my Fifth Amendment privilege.

22

Kelley’s own attorney acknowledged as much when he noted that “maybe . . . she didn’t do a good enough job” in
responding to Plaintiff’s discovery requests. [Hr’g Tr. 73:17.] He also asserted that such failures were not included
in Plaintiff’s motion for sanctions, [Hr’g 73:17-18], but this is simply not true, as Plaintiff’s supplement to its
motion for sanctions specifically faults Kelley for her inadequate responses regarding communications from
Comcast. [Dkt. 159 at 2-3.] In any event, a court deciding the propriety of sanctions “considers the defendants’
discovery conduct as a whole, and [does] not focus solely on the straw that broke the camel’s back.” Domanus v.
Lewicki, 742 F.3d 290, 302 (7th Cir. 2014) (citation and quotation marks omitted). The Court may thus
appropriately consider Kelley’s discovery failures without regard to whether Plaintiff specifically raised each
individual failure.

54

Q: Have you ever watched adult movies which you downloaded via BitTorrent
with your wife?
A: I wish to invoke my Fifth Amendment privilege.
Q: Have you ever listened to music which you downloaded via BitTorrent with
your wife?
A: I wish to assert my Fifth Amendment privilege.
...
Q: Did you ever watch Plaintiff’s adult movies that you downloaded via
BitTorrent with your wife?
A: I wish to assert my Fifth Amendment privilege.
[Hr’g Tr. 115:8-121:1.] Based on this exchange, the Court may infer that Charles did in fact
“intentionally fail to tell the truth during [his] deposition.” [Hr’g Tr. 115:8.] This satisfies the
intent and falsity elements of perjury, leaving only materiality, but Charles’ lies were also plainly
material: Because Charles refused to state whether he had “download[ed] Plaintiff’s adult
movies” via BitTorrent, [Hr’g Tr. 118:20-22; 120:24-121:1], the Court may infer that Plaintiff
did so. This conduct goes directly to the heart of Plaintiff’s underlying copyright infringement
claim, and Charles’s lies about this conduct would naturally influence a fact-finder’s decision
regarding Charles’ liability in this case. As a result, Charles gave intentionally false deposition
testimony about a material matter, and he therefore committed perjury.
Other evidence corroborates this finding: First, Mr. Paige executed a declaration
indicating that he examined the Western Digital hard drive and found “extensive evidence
of BitTorrent use as well as numerous pirated software, movies, and music” files. [Dkt. 139-1 ¶
10.] Because Charles Tashiro was the “primary user” of this hard drive, [see Dkt. 130-2 at 4
(Def.’s Resps. to Pl.’s Interrogs.)], this finding implies that Defendant Charles did in fact use
BitTorrent to download material other than music, such that his testimony to the contrary was
false. Further, because the evidence of BitTorrent use was “extensive,” it is unlikely that Charles
merely forgot or was confused about his use of BitTorrent, such that his lies were intentional.

55

Next, Mr. Patzer indicated that IPP recorded someone with the Tashiros’ IP address
downloading adult movies via BitTorrent. [See Hr’g Tr. 201:23-202:3.] Defendant Kelley
testified that she never used BitTorrent, [Hr’g 60:7-9], and other testimony indicated that the
Tashiros’ internet account was password protected during the period of recorded infringement.
[Hr’g Tr. 36:5-20.] Plaintiff then established that it had deposed each of the Tashiros’ neighbors,
and that all of them denied being able to access the Tashiros’ internet account. [Hr’g Tr. 38:1839:3.] Together, this testimony indicates that Defendant Charles was the only person who could
have used the Tashiros’ internet account to download adult movies, thereby confirming that his
deposition testimony to the contrary was false. The Court thus concludes—again—that Charles
perjured himself at his deposition.
C. Attorney Phillips’ Conduct
Based on the foregoing, Defendants Kelley and Charles spoiled evidence, committed
perjury, and failed to investigate whether their discovery responses were complete and accurate.
Plaintiff, however, alleges that the above-described misconduct extends to Defendants’ counsel.
[See Dkt. 130 at 1.] Plaintiff contends that attorney Phillips failed to fulfill his obligations to the
Court and to his opposing counsel, and Plaintiff asserts that Phillips has been “untruthful and
acted fraudulently throughout the course of this litigation.” [Id. at 2.]
Plaintiff is correct that “lawyers have a duty to act in good faith in complying with their
discovery obligations and to cooperate with and facilitate forthright discovery.” In re Sulfuric
Acid Antitrust Litig., 231 F.R.D. 331, 342 (N.D. Ill. 2005) (citing Johnson v. J.B. Hunt
Transport, Inc., 280 F.3d 1125, 1132 (7th Cir. 2002)). They must “respond to interrogatories
reasonably,” they must base their discovery responses “on a good faith belief in their merit,” and
they “must be mindful of [their] obligations to the administration of justice, which is a truth-

56

seeking process designed to resolve human and societal problems in a rational, peaceful, and
efficient manner.” Thompson v. Fajerstein, No. 08 CV 3240, 2010 WL 4628515, at *5 (N.D. Ill.
Nov. 8, 2010) (citations and alterations omitted). If a lawyer fails to full these obligations, the
Court may use its inherent powers to sanction the culpable attorney. See, e.g., United States v.
Johnson, 327 F.3d 554, 560 (7th Cir. 2003) (citations and quotation marks omitted) (“Key
among the inherent powers incidental to all courts is the authority to control admission to its bar
and to discipline attorneys who appear before it, and, as we have noted previously, a federal
court has the inherent power to sanction for conduct which abuses the judicial process.”).
Phillips’ conduct in this case borders on sanctionable. First, Phillips clearly did not
persuade his clients to accurately respond to Plaintiff’s discovery requests: he claimed that he
was waiting to “hear back to ensure the responses were 100% accurate,” [Dkt. 130-3 at 1
(emphasis original)], but the above-noted omissions of the Western Digital hard drive and the
Dell XPS 600 indicate that his efforts to ensure such accuracy were ultimately inadequate.
In addition, Phillips’ correspondence with Plaintiff’s counsel was especially alarming.
Plaintiff informed Phillips about the undisclosed Western Digital drive on April 8, 2007 at 6:01
p.m. [Dkt. 130-3 at 4.] Less than four hours later, Phillips responded that his clients were
unaware of the drive. [Id.] Plaintiff’s counsel then replied at 10:13 p.m. on April 8. [Id. at 7.] He
explained that the undisclosed drive had been connected to one of the previously disclosed drives
in the early morning hours of December 23, 2013. [Dkt. 130-3 at 7.] He based this assertion on
timestamps indicating that the drive had been connected at approximately 3:15 a.m. UTC [Id. at
3.] Philips responded the next day at 12:21 p.m. He claimed that his client “connected nothing,”
and suggested that the connections were “done by Q-discovery,” since the connections “were
made the day they were in the possession of Q-discovery.” [Dkt. 130-3 at 7.]

57

This suggested explanation was impossible. The timestamp on which Plaintiff relied was
listed in Coordinated Universal Time (UTC). [Dkt. 130-3 at 3.] Thus, the 3:15 a.m. timestamp
corresponded to 10:15 p.m. EST on December 22, 2013. The drives at this time were not in
possession of Quantum Discovery. [See Dkt. 76-1 ¶ 25.] Instead, they were in Defendants’
possession. [See id.] The connection of the undisclosed drive thus could not have been explained
by the actions of Quantum Discovery, and if Phillips had taken any time to consider his response
to Plaintiff’s email, he surely (the Court hopes) would have realized the absurdity of his
statements.
Alas, that is not the end of Phillips’ correspondence: having just offered his own
impossible explanation for the connections, Phillips—in the same April 9 email—asserted that
Plaintiff’s own allegations were “impossibl[e]” and “patently absurd.” [Dkt. 130-3 at 7.] He then
advised Plaintiff’s counsel to reconsider his claims because he, Phillips, would be “holding you
to your Rule 11 obligations.” [Dkt. 130-3 at 7.]
Plaintiff’s counsel responded via email and explained that Phillips’ suggestion was, as
described above, impossible, [Dkt. 130-3 at 10], but Phillips remained undaunted. He responded
approximately one hour later, and he continued to assert that any drives that were connected on
the night of December 22, 2013 must have been connected by Quantum Discovery or must have
been drives that had already been disclosed. [Id.] Again, Phillips invoked Rule 11: “Its [sic] not
my job to provide you advice to prevent a Rule 11 violation, but as a professional courtesy, I’m
telling you that all ducks should be in a row, and all investigations had, because you’re going
down a wrong path here on bad information.” [Id.]
Phillips statements in the above-described correspondence are unseemly and
inappropriate. Plaintiff’s counsel confronted Phillips with documented evidence of the existence

58

of a specific hard drive that had not been disclosed, yet Phillips’ responses showed no intent
whatsoever to investigate those claims. His invocation of Rule 11 was especially improper, as he
apparently sought to interpose the rule as an obstacle to forestall any investigation into his
client’s misconduct. That alone borders on sanctionable conduct, see, e.g., Gaiardo v. Ethyl
Corp., 835 F.2d 479, 485 (3d Cir. 1987) (“A court may impose sanctions on its own initiative
when [Rule 11] is invoked for an improper purpose.”), and were Phillips’ emails the only
evidence of his conduct in this case, the Court would not hesitate to impose sanctions.
At the supplemental hearing, however, the Court afforded Phillips an opportunity to
explain his actions. There, he explained that, despite the timing of his emails, he did in fact
contact his clients to try to unearth the truth about the Western Digital hard drive before
responding to Plaintiff’s inquiries. [Supp. Hr’g Tr. 38:15-39-40:3.] He also offered to submit to
the Court emails that he had sent to his clients as part of his investigation of Defendants’ alleged
misconduct. [Supp. Hr’g Tr. 47:22-48:10.] Based on these representations, the Court finds that
Phillips did not indiscriminately rely on his clients’ representations about their disclosures, such
that he did—albeit barely—fulfill his obligations to see that his clients’ discovery responses were
accurate. Further, the Court acknowledges that its inherent powers must be used “with restraint
and discretion.” Johnson, 327 F.3d at 560 (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44
(1991)). Here, it seems that—if his representations about his investigations are true—then
Phillips was a victim of his clients’ deceit, just as were Plaintiff’s counsel and this Court. In
these circumstances, the Court will exercise its discretion to refrain from sanctioning Phillips.
D. Magnitude of Appropriate Sanction
Having concluded that Defendants spoiled evidence, committed perjury, and failed to
fulfill their discovery obligations, the Court now addresses the appropriate sanction. A district

59

court has broad discretion in its choice of sanction, but any sanction imposed pursuant to the
Court’s inherent powers “should be proportionate to the gravity of the offense.” Montano, 535
F.3d at 563. The goals of such sanctions are to “remedy prejudice to [the opposing] party,”
“reprimand the offender,” and “deter future parties from trampling upon the integrity of the
court.” Salmeron v. Enter. Recovery Sys., Inc., 579 F.3d 787, 797 (7th Cir. 2009) (quotation
omitted).
Plaintiff in this case requests entry of a default judgment against Defendants. [Dkt. 130 at
4.] Default is an “extreme” and “draconian” sanction that courts should impose infrequently.
Barnhill v. United States, 11 F.3d 1360, 1367 (7th Cir. 1993). A court should thus generally
consider whether the alleged misconduct has seriously prejudiced the opposing party, but, as
noted previously, a finding of prejudice is not a prerequisite for dismissal or default. Id. Instead,
the misconduct at issue may be so egregious that allowing the case to continue “would raise
concerns about the integrity and credibility of the civil justice system that transcend the interests
of the parties immediately before the court.” Id.
Similar considerations inform imposition of sanctions for perjury. “As a fraud on the
court, perjury may warrant the sanction of dismissal,” but dismissal or default is not appropriate
in all situations. Montano, 535 F.3d at 564. The “severity of a sanction should be proportioned to
the gravity of the offense,” such that perjury may not warrant default when, for instance, the
“opposing litigant [has] perjured himself as well,” when the perjury is “quickly discovered,” or
when the perjury is “harmless so far as affecting the course of the litigation.” Allen v. Chicago
Transit Auth., 317 F.3d 696, 703 (7th Cir. 2003). Thus, in choosing between default and a lesser
sanction, a court should consider “(1) prejudice to the [opposing party]; (2) prejudice to the
judicial system; and (3) deterrence and punishment.” Dotson, 202 F.R.D. at 575. Before

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imposing default, a court must support its decision by clear and convincing evidence, 23 and
should consider whether lesser sanctions would adequately advance the goals outlined above.
See REP MCR Realty, 363 F. Supp. 2d at 1010. 24
In this case, the prejudice to the opposing party is clear. First, Plaintiff’s expert indicated
that Malibu Media’s copyrighted content could have been among the files that were deleted from
the Stover drive, [Dkt 76-1 ¶ 28], such that the deletion would naturally impair Plaintiff’s ability
to prove its underlying claim of illegal copying. Second, Charles’ refusal to answer certain
questions about the Dell XPS 600 indicate that this computer had incriminating information on
it, [see Hr’g Tr. 115:16-21], such that the Defendants’ refusal to produce the computer naturally
impaired Plaintiff’s ability to prove its copyright claim. The loss of such obviously material
evidence supports imposition of a correspondingly harsh sanction, such that default judgment is
appropriate. See, e.g., Krumwiede, 2006 WL 1308629, at *10-11 (entering default in response to
“spoliation of evidence . . . essential to [opposing party’s] claim”). 25
Next, Plaintiff suffered extensive prejudice in bringing the instant motion and pursuing
evidence that Defendants should have long ago disclosed. [See, e.g., Dkt. 130 at 2 (“Plaintiff

23

Recent cases have questioned whether clear and convincing evidence is necessary, but these cases have not yet
overruled the existing precedent that requires this elevated standard of proof. Asia Pac. Telecom, 788 F. Supp. 2d at
790 (citing Ridge Chrysler Jeep, LLC v. DaimlerChrysler Fin. Servs. Americas LLC, 516 F.3d 623, 625–26 (7th Cir.
2008); Wade v. Soo Line R.R. Corp., 500 F.3d 559, 564 (7th Cir. 2007)).
24
Certain cases also indicate that default is appropriate only upon a showing of “willfulness, bad faith, or fault.” See,
e.g., Maynard v. Nygren, 332 F.3d 462, 468 (7th Cir. 2003); JFB Hart Coatings, Inc. v. AM Gen. LLC, 764 F. Supp.
2d 974, 982 (N.D. Ill. 2011). Here, however, the Court has already found that Defendant Charles acted in bad faith
and that this conduct was attributable to Defendant Kelley. In addition, “fault,” refers to “the reasonableness of the
conduct—or lack thereof—which eventually culminated in the violation.” JFB Hart, 764 F. Supp. 2d at 982 (citation
and quotation marks omitted). As described above, Defendant Kelley in this case did not make a “reasonable”
investigation into the accuracy of her discovery responses. She therefore acted with “fault,” such that default is
appropriate even if Charles’ bad-faith conduct were not attributable to her.
25
Defendants claim that any prejudice to Plaintiff was actually minimal because all deleted files on the Stover drive
were recoverable. [Dkt. 137 at 10.] The Court, however, has previously rejected this assertion, see supra part
II.A.2.a, and has found it more likely that many files were overwritten and unrecoverable. Further, the recovery of
some files does not redress the prejudice that Plaintiff has suffered in bringing the instant motion or in addressing
Defendants’ failure to disclose evidence.

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spent a significant amount of time working on a strategy to further prove . . . that the drives in
fact existed and that Defendants were being untruthful.”).] Indeed, Kelley Tashiro acknowledged
that searching for the Western Digital drive “[w]asted a lot of [Plaintiff’s] time, money, and
energy,” [Hr’g Tr. 81:22-24], underscoring just how harmful Defendants’ misconduct has been.
Even worse, however, was the harm to the judicial system as a whole. As the Supreme
Court has observed, “[f]alse testimony in a formal proceeding is intolerable,” and a court “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 (1994) (citation omitted).
Here, however, Defendant Charles perjured himself at his deposition, and Defendant Kelley
either perjured herself in her responses to Plaintiff’s interrogatories or, at best, failed to conduct a
reasonable inquiry into the completeness of her discovery responses. In either case, Defendants’
conduct threatened to undermine the “truth-seeking function” of this litigation, and the Court will
not tolerate this “affront” to the judicial process.
Moreover, the Supreme Court has noted that falsehoods and obfuscation “may put the
factfinder and parties ‘to the disadvantage, hindrance, and delay of ultimately extracting the truth
by cross examination, by extraneous investigation or other collateral means.’” ABF Freight, 510
U.S. at 323 (quoting United States v. Norris, 300 U.S. 564, 574 (1937)). This observation could
hardly be more relevant to this case: exposing the Tashiros’ misconduct required multiple
motions for sanctions, [Dkts. 130 & 159], a flurry of motions in limine, [Dkts. 170, 172, 173,
175, 176, 177 & 179], an aborted evidentiary hearing, [Dkt. 206], a later, day-long evidentiary
hearing, [Dkt. 234], and a supplemental hearing for additional argument, [Dkt. 241], all of which
could have been avoided had the Tashiros’ simply been more forthcoming in their responses to

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Plaintiff’s discovery requests. The Tashiros have thus imposed a severe burden on the judicial
system, and the sanction for their conduct must likewise be severe.
Further, 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 by, for example, requiring the jury to infer that Plaintiff’s copyrighted
works would have been found on the hard drive from which files were deleted. But 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, Defendants should not be allowed to do so:
“litigants who use the judicial process have certain obligations and responsibilities,” among them
upholding “the integrity of the judicial process in general.” Dotson, 202 F.R.D. at 574. Where, as
here, a party instead makes a mockery of the judicial process, that party forfeits continued access
to that process. See id.; see also REP MCR Realty, 363 F. Supp. 2d at 1012 (N.D. Ill. 2005)
(“Litigants must know that the courts are not open to persons who would seek justice by
fraudulent means.”).
Similarly, a monetary sanction would help redress the prejudice Plaintiff has suffered and
would help punish the offenders, 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 Defendants’ 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: “Toleration of perjury is
unseemly;” “[f]alse testimony in a formal proceeding is intolerable;” and “truthful discovery” is
too important to the “entire civil justice system” to allow Defendants to continue to debase the

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“truth-finding processes” of this Court with their continued presence before this tribunal. Dotson,
202 F.R.D. at 570, 573.
Finally, the Court notes that, even if default is a “draconian” sanction, Barnhill, 11 F.3d
at 1367, courts have frequently determined that default is appropriate in cases in which parties
have exhibited extensive patterns or repeated incidents of misconduct. See, e.g., Greviskes v.
Universities Research Ass’n, Inc., 417 F.3d 752, 759 (7th Cir. 2005) (upholding dismissal where
plaintiff compounded initial fraud by attempting “to hide such behavior behind a cloak of further
fraud and deceit”); Alexander, 930 F. Supp. 2d at 961 (dismissing case after revelation of
“pervasive” perjury); REP MCR Realty, 363 F. Supp. 2d at 1010-11 (N.D. Ill. 2005) (dismissal
appropriate where party “destroyed significant documents and committed perjury”); Dotson, 202
F.R.D. at 575 (dismissing case when party provided “misleading answers on a continual basis”
and “also committed perjury”); Brady v. United States, 877 F. Supp. 444, 452-53 (C.D. Ill. 1994)
(dismissing case where party offered incomplete interrogatory answers and repeatedly perjured
himself).
Here, the Court finds by clear and convincing evidence that Defendants have engaged in
a similar pattern of misconduct. Defendants spoiled evidence, committed perjury, and failed to
discharge their duties to conduct discovery reasonably and in good faith. They lied to the
opposing party; they withheld the existence of material evidence; and they deleted potentially
damaging computer files the very night before they were to relinquish such files for discovery.
Just as in the cases cited above, this extensive pattern of conduct warrants the harshest of
sanctions, and the Magistrate Judge accordingly recommends that the Court enter default
judgment against both Defendants.

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III.

Conclusion

For the reasons set forth above, the Magistrate Judge recommends that the Court
GRANT Plaintiff’s Motion for Sanctions Against Defendants for Spoliation of Evidence and
Perjury, [Dkt. 130], and enter default judgment against Defendants Charles and Kelley Tashiro.
Any objections to the Magistrate Judge’s Report and Recommendation shall be filed with the
Clerk in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), and failure to timely
file objections within fourteen days after service shall constitute a waiver of subsequent review
absent a showing of good cause for such failure.

Date: 05/18/2015

Distribution:
Jonathan LA Phillips
[e-mail]
Jason H. Cooper
LIPSCOMB, EISENBERG & BAKER, PL
[e-mail]
Michael K. Lipscomb
LIPSCOMB, EISENBERG & BAKER, PL
[e-mail]
Paul J. Nicoletti
NICOLETTI LAW, PLC
[e-mail]
Jonathan LA Phillips
SHAY KEPPLE PHILLIPS, LTD
[e-mail]
Erin Kathryn Russell
THE RUSSELL FIRM
[e-mail]
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