Q: Copyright Lawsuit - ESI
Four months prior to filing my lawsuit as a pro se litigant, I wrote a letter to the company I am now suing requesting preservation of ESI (in particular, security video). I also sent a second notice months after the filing of the case. Both letters were sent via certified mail. That security video would prove my case and fully expose false allegations made by opposing counsel. Now, after 1-1/2 years as the parties are in discovery, defendant claims they no longer have video. I am now filing a Motion to Compel. Any suggestions as to how I can prove intent or what my next steps should be?? Your response is greatly appreciated.
A: Well, this isn't really a copyright question, but an evidentiary question. The failure to preserve or produce relevant evidence in a civil case can have consequences to the party who failed to preserve/produce. The legal concept is called spoliation. You should research that topic to address in any motion that you file. Take a look at the Arizona Rules of Civil Procedure, Rules 37, 45.2, and 26(b). However, it sounds like your case is getting pretty far "into the weeds," and may be headed for trial. I find it really hard to recommend any party to take a case to trial without counsel, and similarly, if the case is destined to go to trial, it's hard to recommend that you not seek the help of an attorney now. Mistakes made now can really cost you later on at trial, when it's too late for an attorney to fix them.
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