Category Archives: Copyright

YouTube I adv. Tur, Continues…

While the Viacom v. YouTube (Google) lawsuit gets the most press, the earlier-filed Tur v. YouTube likely will tread the same path through the DMCA, earlier.  Just issued was an order denying cross-motions for summary judgment on the DMCA exemptions.  Judge Cooper observed that there “is clearly a significant amount of maintenance and management that YouTube exerts over its website [after videos are uploaded], but the nature and extent of that management is unclear.”  Summary judgment was denied, inter alia, because “there is insufficient evidence before the Court concerning the process undertaken by YouTube from the time a user submits a video clip to the point of display on the YouTube website.”

The ruling notes the pre-conditions a website must meet to be eligible for the DMCA safe harbors.  While not at issue on these motions, 17 U.S.C. Section 512(i)(1)(B) requires that the site operator “does not interfere with standard technical measures.”  The statute further explains that these are “technical measures used by copyright owners to identify or protected copyrighted works and [etc.].”

One wonders whether clipping the ‘money shot’ from a video, uploading that excerpt, and converting it to Flash or other view-ware, involves acts that “intefere with,” or that do not “accomodate” the technical aspects of the original work that “identify” it as that of the copyright owner?  The legislative history, and indeed the statute itself, suggests that these “standard technical measures” result from some standards-setting “process.”  17 U.S.C. Section 512(i)(2)(A).  However, the video format used by the copyright owner is one promulgated by a standards-setting process, esp. if the original was not in Flash.  On that basis, clipping part of it, and converting the format would be, IMO, interfering with a feature of the work that helps identify it.

Congress, in its heavily-lobbied wisdom, has shown some tendency to coin terms when writing laws that try to adapt copyright to emerging technologies.  Try to read the foregoing statutory provision on “standard technical measures” that are not to be interfered with, then skip to 17 U.S.C. Section 1202 and read the prohibitions against those who “intentionally remove or alter any copyright management information.”    There seems some possible overlap between “standard technical measures” and “copyright management information” since both deal with “identifying” information conveyed with the copyrighted work.

Whether YouTube can fit its model within the confines of the DMCA exemptions from liability remains to be seen, but unauthorized versions of copyrighted works will continue to be seen on YouTube until the law is construed.

Have The Studios Write Down That Your Ideas May Be Taken.

Idea submission cases involve some contract law concepts that, perhaps, got one day of mention in law school.  Among the most-readable version of idea submission cases are those involving successful movies and TV shows.  Recently filed was a suit, alleging that Fox and Mattel stole their idea for the movie and toys “Robots” from an animation film developer, captioned Midland Prod. Corp. v. 20th Century Fox, 07CV2932 (C.D. Calif.).

It alleges that Midland “developed a feature length animated motion picture about robots titled ‘Robots of Mars.’”  Representatives met with Fox, and later, with Mattel, and got a lot of positive feedback (no bank will let you deposit this, and it is not legal tender).  They were in contact with Producers Chris Meledandri (Ice Age, Ice Age 2, Sister Act 2) and Laura Ziskin (Pretty Woman, Spider Man, As Good As It Gets), but no contract ever was signed.  They were so encouraged, they left their complete “Presentation Package” with Fox and with Mattel, even though, no non-disclosure or other form of agreement was in place.  Instead of money in hand, they accepted its motto, “In God We Trust.”

In the complaint, Midland alleged claims for breach of implied contract, breach of confidence and copyright infringement.  Here’s the nutshell on implied contracts – those are still contracts, and require clear and essential terms.  Implied contracts are formed by conduct, while express contracts are created by words.  Midland alleges many terms, on information and belief, as if there was a contract: that their “ideas” could not be used without “express consent,” that acceptance of these “ideas and materials” was conditioned upon plaintiff being “properly compensated,” including with “participation in the profits generated.”  The implied contract also allegedly was exclusive, that defendants would not “become involved in the merchandising of any project relating to an animated film about robots.”  All of this fits the pleading form, but it may not suffice to prove that the parties agreed on the essential term – price.  What does “properly compensated” mean, even in an express contract?

A further point of weakness in cases over movie ideas is that these usually involve some generic characterizations, here, robots.  The complaint goes into detail about how the robots developed by Midland were similar, e.g., in color and personality, to those in the “Robots” movie.  But, robot humanoids tend to look alike, and they share qualities with the good witch and the bad witch.  One recalls prior cases about pirates -> see, post-colonial Caribbean, planks, eye-patches, etc., and another about North Jersey mafioso, Baer v. Chase, 392 F. 3d 609 (3rd Cir. 2004) (Baer is a lawyer, who prosecuted organized crime figures).  At a point, these narrow-drawn characters meet up with the doctrine that “Aggregation of ideas and expression do not by themselves create novelty.”  Baer.

On the copyright claim, the submitter of the ideas thinks about “substantial similarity” while the defendant might ignore that and enumerate the “substantial” dissimilarities.  Midland did register copyrights on the screen play, and on “scenes collections” (presumably, storyboards and concept art).  Still, it is not certain that a copyright ever was obtained on the “Presentation Package” that Midland left in defendant’s possession.  Always a good idea to slap copyright notices on that slick presentation that one intends to show and share – in confidence.

The Complaintant As Essayist.

All that a federal complaint requires is a “short and plain statement of the claim.”  FRCvP 8(a); Swierkiewicz, 534 U.S. at 512 (2002) (a 28-word complaint).  Recently noted are complaints which turn a phrase finely, and which are quotable in press reports.  What is better – to plead ‘just the facts’ or more?

One new sort of allegation, is to plead the state of the law.  Our Supreme “Court further held that Sony was not liable for supplying the technology that allows the consumer to make such copies.”  20th Century Fox v. Cablevision, (S.D.N.Y.). The “federal copyright law does not extend to protect a fictional charager in the abstract, outside of any particular storyline or work, since the character was and is an idea and concept and federal copyright law specifically does not extend to, cover, or preempt laws dealing with [that].” Friedrich v. Marvel & Sony, (S.D. Ill.).  No matter how you say it, these allegations will be answered with ‘pleads law not facts.’

Another new tactic is to plead the equities, even in a law case. “Industry observers noted this fundamental shift in the competitive landscape.”  Oracle v. SAP, (N.D. Calif.).  “Indeed, there appears to be a general consensus in the [TV &] film industries that DVRs do not violate the Copyright Act.”  Cablevision  “YouTube has harnessed technology to willfully infringe copyrights on a huge scale, depriving writers, composers and performers of the rewards they are owed for effort and innovation, reducing the incentives of America’s creative industries, and profiting from the illegal conduct of others as well.”  Viacom v. YouTube, (S.D.N.Y.).  Does any of that plead how “the pleader is entitled to relief”?  Rule 8(a)(2).

Essaying in your next IP complaint may get it noticed.  My favorite pleaded allegation (and one that cries out for answers) is:  “By day, taciturn and reserved with an outwardly tough demeanor, he hides the loss felt from the death of his father, Barton Blaze, the affection he feels for Roxanne, the love of his life, his guilt over his inability to save the life of Crash Simpson, the only father he’d ever known, and a heart of unparalleled concern for those around him.”  Friedrich v. Marvel & Sony (The “Ghost Rider” copyright suit).

R.I.P. – Ross Zirkle

At death, an artist’s life is canonized by the art he has entrusted to the living.  It is saddening to hear that artist and professor, Ross Zirkle succumbed to cancer. 

History, law, religion, royalty, and common citizens all celebrate art, and so too, they revere the artist, who opens windows for us with their creative eye and inspired hand.  Their works, having been, as the law states “fixed in any tangible medium of expression,” enliven objects and domains, both observed and imagined by them, with the artist’s metaphysic.  When the artist dies, that metaphysic, that viewpoint, continues unchanged, and the windows that they have opened remain so. 

The enrichment, inspiration and instruction of this teacher and artist too remain with those who shared some time on this artist’s path through life.  R.I.P.

The CRB Slips the Yoke onto Streamcasters.

Friday, the Copyright Royalty Board issued its determination about the compulsory royalties that webcasters will have to pay for streaming music.  Various commentators report that, at the rates set by the CRB, the business of streaming music over the web, is dead.  The less-fatal viewpoint is that the RIAA intends to distribute streaming music, but over websites it selects, at agreed royalties, rather than at the CRB’s compulsory rates.

In the CRB’s 115-page determination, the rate structure evolved from a debate between a per-play royalty versus a percentage of revenue royalty.  The webcasters would be benefitted by revenue-percentage model, which would enable both small and large to streamcast and grow their businesses.  The per-play rate would put many streamcaster’s operations into the net-loss category.   The put-out-of-business argument got this sort of reception from the CRB.  “Copyright Royalty Judges cannot guarantee a profitable business to every market entrant. Indeed, the normal free market processes typically weed out those entities that have poor business models or are inefficient. To allow inefficient market participants to continue to use as much music as they want and for as long a time period as they want without compensating copyright owners on the same basis as more efficient market participants trivializes the property rights of copyright owners.”  What cut stings more, being branded as inefficient or being trivialized?  Neither – an .08 cents per performance royalty is the killer!

The CRB decided against the revenue-percentage royalty, based on several factors, mostly difficulties with calculating and assessing the sums due.  “The absence of persuasive evidence of what constitutes an unambiguous definition of revenue that properly relates the fee to the value of the rights being provided militates against reliance on a revenue based metric.”  “The Copyright Royalty Judges do not find a sufficient clarity of evidence based on the record in this proceeding to produce a revenue-based metric that can serve as a good proxy for a usage-based metric.”

In the end, the determined rate, for 2007, is .08 cents “per performance.”  A “performance” is streaming one song to one listener, so do the math.  Streaming 10 songs each hour, 20 hours a day, for 30 days is 6000 performances, if you have only one listener.  Streaming to 20,000 or to 200,000 listener is many more, and at .08 cents per performance, the monthly rate only can be borne by a webcaster with substantial, consistent revenues (not inefficient or trivial ones).

The CRB’s determination goes for publication and comment in the Federal Register.  A web-copy, provided at no royalty, is at http://www.loc.gov/crb/proceedings/2005-1/rates-terms2005-1.pdf

So what if they copied; whatever; fuggettaboutit.

The IP bar deserves to be commended for its studied efforts protecting the IP of the businesses, innovators and artisans of our Country.  Instead, the legal protections sewn around IP appear to provoke more criticism of U.S. patents and copyrights, and to foment calls to slacken the bonds permitted by Art. I, Sect. 8, clause 8.

Much of critique is aimed at Congress or the Courts, but there too are some who suggest tossing away long-standing IP principles.  Some critics are idle bloggers or academics, but other voices carry more weight.  Here are some striking remarks by one worthy observer.  A “plagiarized passage in a published work can increase the pleasure of the reader.”  The “amount of sheer originality in literature and the arts is greatly exaggerated.”  “[O]ur broad and strict copyright laws …stifle creativity.”

These passages are taken from “In Defense of Plagiarism” by noted Federal Judge, Richard A. Posner, in the Jan. 29th edition of Forbes.  His Honor makes three proposals: stop extending copyright terms, add an intent element to infringement, and provide remedies only for proven harm to the “source, a competitor or an audience.”  Posner’s money quote is “No harm, no foul is what the law ought to be.”

Many may agree that legislating term extensions to existing copyrights does not serve the public good.  Posner may have that right, but it gets overshadowed by his suggestion to “bring in the concept of fraud,” to the copyright law “with its connotation of harming”.  Posner’s thesis is that copying has benign forms, “If copying is not fraudulent” and “if it thus is harmless” then why should it be “a reprobated form of copying.”  Because it is unoriginally wrong?

He adds many examples of now-famous persons who were copyists, who in his opinion, improved on the original.  Posner claims that Manet “borrowed the woman’s pose” in his painting of “Olympia” from the master Titian’s “Venus of Urbino.”  Dear Judge Posner, naked women reclined in repose might look all the same through your spectacles, but the keen eyes of others never would mistake the lissome Olympia for the full-figured Venus.  So too, no studied reader would confuse Plutarch’s “Mark Antony” with either of the retellings written by Shakespeare and by Sir Thomas North.  Again, tales of one figure in history tend to have shared content, or their tale would not be true to history.

Judge Posner, in my humble view, suggests a copyright regime built in honor of established authors.  If the work of unknowns can serve as the inspiration for others to “improve the original” then they are certain to remain unknowns.  Posner justifies his no-harm, no-foul thesis with the notion that “plagiarism is ubiquitous in Western culture.”  That same point of reference may be a solid rationale for granting copyrights, for “limited Times to Authors,” which are enforceable with remedies not excused by a lack of fraudulent intent or an absence of provable harm.

Rugged Individualist Film Fest & Copyright Primer.

You probably watched a film over this long weekend, perhaps at a theatre and at home.  Seeing the FBI & Interpol WARNING about copyright infringement in 16:9 aspect on my new HD setup really made a big impression. 

My viewing pleasure was The New Bond Film (does it have another title?), The Good German, and two classics, Lawrence of Arabia, and Rocky.  Each has that central figure, with their own essential male-ness – strengths that cloak vulnerabilities, wise ways that may just be instincts, admired by men and women to the point that some want them destroyed – no one of them the sort you’d raise your son to be.

Each of these films has its own copyright profile too.  Lawrence is an original portrayal of a life in actual historical context.  The New Bond and his exploits derive from, but differ from Ian Fleming’s novel.  Rocky depicts a flamboyant heavyweight champ named for an earth god, who plucks an unknown club fighter into the limelight.  The Good German uses visual composition to pay homage to past films.  Artistic license, and the copyright tenets that provides exclusivity, provides full vocal range to these characters and to directorial efforts composed from history and popular culture.  What limits then are there on making a known story one’s own.

Recent cinema has retold ‘true’ or ‘inspired by’ stories of Ray, Johnny Cash, Enron execs, The Aviator, and now, “Bobby.”  These biopics are more history, or pop culture fables, than “works of original authorship.”  When the famous or infamous say “I’ll sell you my story,” what really do they sell – a covenant not to sue?  The great exploits of Lawrence in Arabia are true, and many truly are exagerrated.  With that, and “Bobby,” the man who lived the story died before it was adapted for the silver screen.   Events in history are publici juris, and uncopyrightable.  Yet, the expression or arrangement of the historical story may be protected by copyright.

Is “Lawrence of Arabia” any more T.E. Lawrence, or any less so, than “Rocky” is a depiction of The Bayonne Bleeder, Chuck Wepner; is not Apollo Creed a crass version of The Louisville Lip?  Copyright cannot protect the author’s studied retelling of the facts, especially when those facts and the essential characteristics of real persons are woven into new costuming.

The Bond franchise credits its originator, but the films produced by Albert Broccoli derive from, rather than track closely, the books of Ian Fleming.  Both are original works, protected by copyright, one for the originals and others for the derivative versions.  A derivative copyright protects only the new material contained in the derivative work, not the matter derived from the underlying work.

A more complex issue of copyright accompanies “homage” films such as The Good German.  Students of film noir, neo-noir, as well as fans of Dietrich, Garbo and Welles can reel off the numerous instances where The Good German pays homage to their prior work.  “The Third Man” “Casablanca” and others, plainly were recast in The Good German.  Recall the cases about “look and feel” form of copyright infringement.  Director Steven Soderbergh adopts, in gross, the look and feel of several classics and noir films.  In fact, scenes or perhaps Scènes à faire, appear throughout the film.  What then is the distinction between homage and “substantial similarity” in a copyright context?  At least one of the two will get you sued.  Homage is perhaps a sincere form of showing your respect for the masters.  Substantial similarity is what chafes an author to the point of suing for exploitation.

It’s another week, with plenty of opportunities to watch more films.  Enjoy!

Santa Brought Me A Lionel Train That May be Mike’s.

The global methods used to manufacture well-known, brand name products for the U.S. market are set out in Mike’s Train House v. Lionel LLC, (6th Cir. 12/14/2006).  American designers work with manufacturers in Asia, exchanging drawings, IP and specifications, which, in this example, produces remarkably authentic model trains that soon may encircle your Christmas tree.  Mike, of Mike’s Train House, was hired by Lionel to work, with Korean designers and makers, on models and mold for casting HO trains.  Presumably, much of what goes into making HO scale replicas of trains is accurately reduced dimensions of real train cars.  Not only did Mike create designs, but the Korean company had its own designers and used “subcontract designers.”  The testimony was that all of them “had access to all designs” and “were allowed to make and retain copies of those designs.”  As expected, these designers come and go, and apparently, so too did some design drawings.

After Mike and Lionel no longer were working together, Lionel distributed two trains, which Mike believed were based on his designs.  He “immediately traveled to Korea.”  Law enforcement authorities opened a criminal investigation, which lead to criminal and civil proceedings, and to guilty verdicts and civil liability against the Korean participants.  Then, Mike started a civil suit against Lionel in U.S. federal court.  By trial, only state law claims of trade secret misappropriation and unjust enrichment remained, and on both of those counts, a jury awarded past damages and future lost profits to Mike.  In the appeal though, the Circuit Court vacated because the expert testimony establishing the inference of misappropriation was ruled inadmissible, and because the tort liability was several, not joint and several, and because the award ‘double-counted’ when assessing damages and lost profits. 

On retrial, the plaintiff again must prove liability, but the description of the availble evidence suggests the Mike may have enough to carry the day before a second jury.  It thus was odd to read the published remark, “I feel vindicated,” from Lionel’s CEO Jerry Calabrese, as reported by the AP.  The Circuit affirmed the admission into evidence of the criminal convictions and civil judgments of the Korean court, and witness statements from those proceedings.

The two rulings of note to IP litigators were the preclusion of an opinion about similarity between the plaintiff’s design work and defendant’s products, and the holding that trade secret protection encompasses measurable specifications as well as “a mixture or secret information …and non-secret information.”

The reversal, on Daubert grounds, of the admission of the expert’s opinion was somewhat surprising.  One driving consideration may have been that the District Judge failed “to make any findings regarding the reliability” of the expert’s analytical approach.  Presumably, analysis of misappropriation is not a topic in scientific journals, and so, the offered methodology never “had been tested, subjected to peer review, [etc.]”.  This expert, a professor and Ph.D. in Mechanical Engineering, used a method similar to handwriting analysis, which enumerates similarities, then quantifies and “scores” those in the two versions.  His opinion was that between 60% and 69% of the drawings were copied.  The Circuit held the theory was “novel” and the opinion “unreliable.”  Largely, the complaints were that some indicia of similarity were not indicative of copying, and that some similarities were given greater weight, and about the use of a “regression” analysis to opine as to the correlation between his opinions and the findings of a Special Master appointed by the Korean courts.  These complaints prompted the conclusion that the expert’s “methodology does not reflect the realities of the Korean design industry.” 

The surprise in that conclusion comes from the long-held rubric that accuracy of data or analysis ‘goes to weight, not admissibility.’  As stated by Justice Brennan, when reviewing a regression analysis, “Normally, failure to include variables will affect the analysis’ probativeness, not its admissibility.”  Bazemore v. Friday, 478 U.S. 385, 400 (1986).  In the Lionel case, the opponent surely challenged Mike’s expert, fully and in front of the jury, about whether his analysis and opinion reflected the “realities of the Korean design industry.”  If some of the criteria were overly weighted, then the jurors knew about that, but still, there was substantial evidence to support their verdict for Mike.  To rule inadmissible, opinion and analysis that may have some flaws, moves toward formalisms and away from the threshold question of whether it “will assist the trier of fact.”  FRE 702.

Will You Still Steal Me, When I’m 64.

Yes, today marks the 64th birthday of the late Jimi Hendrix.  Is there any better way to close off a day at the Supreme Court hearing on the KSR v. Teleflex obviousness case, than to Metroliner to Manhattan for tonite’s tribute concert at B.B. King’s.

Let’s mark the birthday too with a note about USDJ Kaplan’s recent decision in Experience Hendrix v. Chalpin, over the auction at Ocean Tomo of the masters of the Hendrix discography.  I recall generally, but not the specific figure of, the balance that Jimi had in his bank account on the date of his death.  In the Hendrix memorabilia, once displayed at the R&R Hall of Fame, was that bank statement, and his closing balance was something on the order of $1200.  Whatever that sum, it is miniscule compared to what others have earned from Hendrix’ body of work.

The case against Chalpin arose from a 1965 “one-page recording agreement,” and a 1973 consent decree in the High Court of London, by which certain “master recordings” were to be surrendered to the Hendrix estate, along with a large royalty payment.  The decree became a domesticated judgment in New York Supreme, but the royalty never could be collected. 

When Ocean Tomo offered the works for auction, Experience Hendrix sued and sought a TRO and order of attachment.  The auction proceeded, and someone bid $15M for one of the three lots offered. 

Judge Kaplan’s decision contains many stinging passages, aimed at one who sounds like the stereotype shady “agent” for entertainers.  In his dealings with other performers, Mr. “Chalpin used shell companies in the past to avoid payment obligations.  Chalpin’s testimony about a “great many … matters was vague, punctuated by protestations of lack of memory, and internally inconsistent.”  His sworn “testimony does not inspire confidence” and the Court found that Chalpin had “deliberately and knowingly testified evasively in order to conceal the truth.”   It thus was no surprise that an attachment and injunction were ordered.  In all, the case and its participants reprised their homage to the ring cycle of money corrupting art, until the artist is left with none.  Only the artist’s songs remain uncorrupted.

“The angels will spread their wings, spread their wings
Good and evil lay side by side while electric love penetrates the sky.” 
RIP- Jimi Hendrix

Need I Remind You About The E-mail [non] Retention Policy.

“In the spirit of the end of the year (and the slow down … work), we want to remind[] you of the … document retention policy . . . ”  That quote comes from the 2nd Circuit’s ruling in U.S.A. v. Quattrone, where they recite the direction to CSFB staff about the retention/destruction of records.  After reading the decision that chastises the VC firm, Hummer Winblad, for an ambiguous direction to delete e-mails, comparisions between that and the directives in the Quattrone and Arthur Andersen cases are apparent.

Judge Patel, in another In re Napster, C-MDL-00-1369 (N.D. Cal. 10/25/2006), C-MDL-00-1369 (N.D. Cal. 10/25/2006) ruling, finds that “Hummer deleted e-mails which it had a duty to preserve and produce.”  Sanctions of an adverse inference instruction, some preclusion, and attorneys fees were imposed.  In this case, as well as the criminal actions against Quattrone and Andersen, the intent of the directive, or reminder about policy, was ambiguous.  The demonstrable result of the notice, though, clearly was deletion of discoverable information.

When an “email to nine Hummer employees” comes from “Hummer officer Ann Winblad” about a present need to “reinforce compliance” with document retention policy, then that is more compelling than an e-mail received from some IT-meister resident at the server farm.  When that intro about employee “compliance” is followed with five bullet points containing the verbiage “do not retain” and “to delete,” then again, it is fairly compelling to the “employees” who get it.  It seems that the employees do ‘get it’?

In the Quattrone case, the reminder was of the five categories of documents in a proper CFSB file, and that for “greater compliance with these policies, no file categories other than those [five] may be created .”  Just so the employees ‘get it’, the reminder instructed, “what does this mean? “Generally speaking, if it Is not (i) – (v), it should not be left in the file.”  One read is, that what “is not” among the five, is contraband, so disappear it.  The Winblad ‘reminder’ largely conforms to the missive quoted in the Quattrone case.  If anything, Winblad added the line “it is your responsibility to delete your handled e-mails immediately.” Capece?

Much of what Judge Patel heard argued about was over any indicia of intent, or of innocence, to be gleaned from the reminder & directive.  That, of course, is at the heart of the Quattrone and Andersen cases.  With both criminal and civil sanctions, there is the SNAFU defense or dodge, or as Judge Patel posed it, is this a “willful deception or simple incompetence.”  Hummer contended that non-production of Winblad’s “reminder” e-mail (not the e-mails deleted as a result) was due to “inadvertence,” or a “mistake” about that e-mail being privileged.  The objective facts were that the firm lacked a clear plan to preserve and avoid deletion, and that, if Hummer thought it to be privileged, why was it left off the privilege log. 

One overriding issue is the “duty” to preserve, which attaches when litigation is known or expected.  On that point, Hummer Winblad was late being added to the Napster cases, and the first case was dismissed.  Thus, the duty was on-again-off-again, arguably.  That reminds one of the fire-line set out in the Arthur Andersen ‘reminder’ message, “[I]f its destroyed in the course of [the] normal policy and litigation is filed the next day, thats great. . . . [W]eve followed our own policy, and whatever there was that might have been of interest to somebody is gone and irretrievable.”  374 F. 3d 281, 286 (CA5 2004).”

This decision is another where, one wonders whether, the cover-up caused more harm than the deletions.  Judge Patel concludes that it was “not shown that Hummer acted willfully in destroying its e-mails, and there is evidence that the actual number of e-mails lost is small.”  The opinion ends with an award of counsel fees, with a reminder to plaintiff’s counsel that the amount sought must be “reasonable {italicized by Judge} in light of the degree of Hummer’s culpability.”

E-discovery is expensive, as is paying lots of associate time to log and review files then for partners to oversee that review.  It doesn’t make much sense to secret, or worse to destroy e-mails that are not that harmful.  When those worms crawl out of the apple, then it becomes the cover-up that poisons the entire barrel.