Kim Dotcom's Lawyer Says DOJ 'Blessed' Destruction Of Evidence In Megaupload Case

from the that-can't-be-good dept

Last week we wrote about the reports from Kim Dotcom that the main European hosting provider that Megaupload had used, Leaseweb, had deleted all of the data on the over 600 servers Megaupload had leased from the company with no warning. That’s kicked off something of a he said / she said between the two sides concerning what communications and business offers were made, and on the timing of everything. It does seem clear that both Dotcom’s lawyer and the EFF sent Leaseweb a notice to preserve the data, as it was a part of an ongoing criminal case. Leaseweb argues that it replied to these concerns and that it had no legal obligation to keep the data, but did so anyway for many months, before reprovisioning the servers. It also claims it gave Megaupload notice of these plans.

There’s some suggestion that Dotcom may sue Leaseweb over all of this, but a much more interesting point is made all the way at the end of Ars Technica’s coverage of the story, in which Dotcom’s lawyer, Ira Rothken, is quoted about the DOJ’s role in all of this:


“We learned that the [United States Department of Justice] blessed the LeaseWeb data destruction and we will raise these issues at the appropriate time with the Federal Court in the US.”

Of course, that’s the big issue here. If the DOJ blessed the destruction of evidence in a criminal case, that’s going to look very, very bad for the DOJ, and make it a lot more difficult for them to have this case succeed. Of course, as we’ve discussed, almost from the very beginning, it has appeared that the DOJ wanted evidence destroyed in this case (that’s from less than two weeks after the evidence was seized). It seems fairly incredible that this has remained the DOJ’s position, since it seems like an issue that is almost certain to be raised in court. If the DOJ is so confident in their case, why would it support the destruction of evidence?

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Companies: leaseweb, megaupload

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Comments on “Kim Dotcom's Lawyer Says DOJ 'Blessed' Destruction Of Evidence In Megaupload Case”

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55 Comments
Lokisays:

Re: Re: Re: Re:

Plus, as has been pointed out before, this was never about finding him actually guilty of any crime (although if they could do so in the process it would just be icing on the cake). It was about slowing down potential serious competition.

The destruction of data only works in favor of that goal, because regardless of the effects it has on the actual case, it’s likely to seriously hurt his ability to attract customers. Whether he’s proven right or wrong, guilty or not guilty, people are going to be a lot less willing to trust him with their data now for fear this might happen again.

out_of_the_bluesays:

Going back to this, eh? On unsupported word of a lawyer.

Lawyers only make statements when can’t be proven wrong. So now that Dotcom failed to make payments on storage, there’s no evidence and they’re free to claim anything — to SHIFT discussion away from whether Dotcom / Megaupload was hosting infringed content.

AND, as I said prior: “If Dotcom is so darned eager to prove his innocence, he can hop on a plane for the US and get it over with.” — Of course you dolts take that out of context: the topic is that Dotcom is claiming EXCULPATORY evidence was destroyed, not whether DOJ can prove guilt.

Take a loopy tour of Techdirt.com! You always end up same place!
http://techdirt.com/
If Mike supports copyright, why are the pirates here? They take him same as I do: PRO-PIRACY!
03:03:45[d-10-0]

Ninjasays:

Re: Re: Re: Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.

Considering there’s no evidence presented against him so far because they are secret or something the other way around would be to look into the data and produce evidence that would counter anything. It’s still an idiocy and goes against the established principle of innocent till proven guilty.

Again, moron.

Anonymous Cowardsays:

Re: Re: Re: Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.

Of course the DUMBASS calling me a dolt STILL doesn’t see any problem with the statement:

“AND, as I said prior: “If Dotcom is so darned eager to prove his innocence, he can hop on a plane for the US and get it over with.”

Exculpatory or not, he STILL doesn’t have to prove INNOCENCE.

Dumbass.

Anonymoussays:

Re: Re: Re:2 Re: Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.

He is presumed innocent until proven guilty, this is true. However the problem stems from the fact that Dotcom still needs to present a defense against the accusations from the courts. Without it, the can say whatever they want and Dotcom has to concede.

In America, that defense could be as simple as poking holes in the claims of the State, but given the nature of the case and that he might have to contend with courts in other countries, having that data vanish is the worst form of illegal tampering that the DoJ could do. If that is what they did.

Then there’s the simple fact that he was planning to return the lost data to his customers if and when Mega ever got restarted. That’s just a slap in the face of all MegaUpload users/fans.

Why did LeaseWeb (not a company known for great customer service in my experience) delete the files? Why would the DoJ support or even demand those files be eliminated?

Like getting to the center of a Tootsie Pop.. the world may never know.

Anonymoussays:

Re: Re: Re:3 Re: Re: Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.

What I would like to add is this, if it is Leasewebs terms to delete servers and reuse them if NO payment received then why did Leaseweb wait NEARLY a year to send a letter stating that the servers were going to be reprovisioned considering that no payment was actually paid for the servers during this year that Megaupload did not make any payment during this year. So if Leaseweb can state that they deleted the servers because of no payment then why not delete the servers after a month or 2 without payment but they instead chose to wait nearly a year without payment and without communication to Megaupload before sending a letter to say that they were going to reprovision the servers because of no payment.

sorrykbsays:

Re: Re: Re:3 Re: Re: Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.

Anonymous Coward wrote

the problem stems from the fact that Dotcom still needs to present a defense against the accusations from the courts. Without it, the can say whatever they want and Dotcom has to concede.

Actually, no. While in practical terms it may be helpful to present a defense, presumption of innocence means that a defendant is not in fact obligated to do or say anything in his own defense, and does not have to “concede” if he doesn’t. He does not have to call witnesses or present exculpatory evidence. He can simply argue that the prosecution failed to prove its case. (The argument may not be successful, but again, the burden to prove the case is entirely on the prosecution.)
Or, at least, that’s how it’s supposed to work.

Rikuosays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.

Precisely. (In theory at least) assuming Dotcom is extradited, (and assuming the US courts play by the rules, I know I know, I can barely stop laughing at the thought), all he would have to do is sit there in the court-room and his lawyer stands up saying “Your Honour, not one shred of evidence, or at least what little of it that the prosecution has shown to the court, can be trusted or verified. Without that, they don’t have a case”.
That’s all that needs to happen.

Anonymoussays:

Re: Re: Re: Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.

Correction: on this specific subject they’re claiming exculpatory evidence was destroyed. They have always maintained however that the DOJ cannot prove guilt. So there really is no mitigating context to the stupidity of your statement.

Anonymoussays:

Re: Re: Re:2 Re: Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.

You might be surprised to learn that quite often, even when the DoJ has no case, they still proceed like a dog with a child’s leg in its powerful jaws… and even more surprisingly, they win a conviction that isn’t overturned for years.. if ever.

A man accidentally purchases more than the maximum allowed quantity of a prescription pain-reliever and he goes through the mud accused of being a drug dealer. It got a bit of press, but the worst part is that the DA knew they had no case and had their case thrown out several times by smart judges.

They didn’t stop until they were able to secure a conviction against a loving husband and father who used that medication to help him deal with constant pain from his disability. Naturally the conviction was overturned, but not until the man served a year in prison.

The DoJ knows that quashing evidence hurts the defendants since they cannot easily show the required “reasonable doubt” without it.

Welcome to America.

Rekrulsays:

Re: Re: Re:3 Re: Re: Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.

You might be surprised to learn that quite often, even when the DoJ has no case, they still proceed like a dog with a child’s leg in its powerful jaws… and even more surprisingly, they win a conviction that isn’t overturned for years.. if ever.

I remember reading about another case where the FBI continued to go after a guy even after the “child porn” on his computer turned out to 100% legal. It just starred a very young looking girl, who showed up to testify in the guy’s defense.

out_of_the_bluesays:

Re: Re: Going back to this, eh? On unsupported word of a lawyer.

By the way, me, you again forgot to wonder why in the several months that the data was preserved, Dotcom didn’t make, or rather, have made and certifed, copies of the surely small amount, not the whole 40 PB, of crucial evidence that he claims would clear him.

Anonymoussays:

Re: Re: Going back to this, eh? On unsupported word of a lawyer.

“”AND, as I said prior: “If Dotcom is so darned eager to prove his innocence, he can hop on a plane for the US and get it over with.”””

If there is a case against Dotcom then WHY is the prosecution causing delay after delay with appeal after appeal and causing the extradition hearing to be delayed time and time again. If the prosecution had such a case against Dotcom then they would not be causing delay after delay to the extradition hearing would they. Right?

Anonymoussays:

Re: Re: Going back to this, eh? On unsupported word of a lawyer.

“they’re free to claim anything — to SHIFT discussion away from whether Dotcom / Megaupload was hosting infringed content.”

Sure they’re free to claim anything, but if it’s half as cut and dry as you make it out to be, it shouldn’t be that hard to seize servers, show content was there, and give a reasonable suspicion that Dotcom knew at least some was there. If they did that, I would think that Dotcom would have been extradited. The real questions are: why haven’t they done it and why hasn’t he been extradited. Maybe your assumption that he’s guilty is making an you look a little foolish?

“So now that Dotcom failed to make payments on storage”

His assets are frozen. He hasn’t been able to pay because he can’t access his money.

The evidence is part of a criminal investigation, which means the hosting company is required to keep that data (or submit it to the court/parties of said case).

“If Dotcom is so darned eager to prove his innocence, he can hop on a plane for the US and get it over with.”

Dotcom shouldn’t be required to prove innocence, he is required to prevent the DOJ from proving guilt. This means anything from delay tactics to questioning the evidence against him, to forcing the DOJ to follow the due process of the law (see 5th Amendment).

“Dotcom is claiming EXCULPATORY evidence was destroyed, not whether DOJ can prove guilt.”

Trying to find any sort of relevance to a point other than you’re trying to say you’re smarter than us so believe you… (you’re not a DOJ puppet are you ootb?). Either way casts doubt on the DOJ and is bad. The DOJ is responsible to prove guilt and if something was destroyed that may proves innocence on their watch, that doesn’t bode well for them as it casts reasonable doubt. If Dotcom can pose reasonable doubt, then the DOJ can’t prove guilt. So where were you going again?

Internet Zen Mastersays:

Re: Re: Re: Re: Going back to this, eh? On unsupported word of a lawyer.

His assets are frozen. He hasn’t been able to pay because he can’t access his money.

Bolded for relevance.

While it’s true that Dotcom did have access to some funds, the NZ court only gave him enough for living expenses while he’s being dragged through what’s amounted to a modern-day witch hunt. The rest of it is STILL frozen, so he couldn’t use it to pay the rent on those servers to begin with.

Sure, he could’ve used some of the money provided to him by the court for the payments, but I figure Dotcom was assuming that Leaseweb would hold onto that 40% of MU’s data while this whole thing got sorted out.

The evidence is part of a criminal investigation, which means the hosting company is required to keep that data (or submit it to the court/parties of said case).”

Oddly enough, this is exactly what MegaUpload did when asked (indirectly mind you) by the DOJ not to touch 38-39 copyrighted movies which had been uploaded to MegaUpload’s Megavideo by the tv show/movies/documentaries streaming website NinjaVideo, and were used as part of the evidence against them by the prosecution.

That trial happened in late September of 2011 with most of NinjaVideo’s staff pleading guilty to criminal copyright infringement (though apparently an active uploader for the group remains at large). Megaupload didn’t touch those files due to the possibility of getting charged with tampering of evidence (one of the co-founders of NinjaVideo was sentenced sometime in February 2012, AFTER the MU takedown).

I can understand why Dotcom is so irritated. Why the hell does his business get shut down for following protocol (the sentencing for one of the co-founders of NinjaVideo occurred in February 2012, AFTER the MegaUpload takedown), and LeaseWeb gets a free pass to delete 40 PB of data that is possible “exculpatory evidence”? I’d be pissed too if something like that happened to me.

John Fendersonsays:

Re: Re: Going back to this, eh? On unsupported word of a lawyer.

If Dotcom is so darned eager to prove his innocence, he can hop on a plane for the US and get it over with.

This wouldn’t work.

First, if exculpatory evidence ha been destroyed, how would he do this?

Second, Dotcom is very likely to face a show trial in the US, not one that actually reveals truth.

JMTsays:

Re: Re: Going back to this, eh? On unsupported word of a lawyer.

“AND, as I said prior: “If Dotcom is so darned eager to prove his innocence, he can hop on a plane for the US and get it over with.””

And as I said prior, I’m not sure if this statement is made out of ignorance, malice or both…

http://www.techdirt.com/articles/20130619/07515923527/leaseweb-deletes-megauploads-servers-without-warning-destroying-key-evidence.shtml#c992

How about a response this time. If you’re so sure of your argument you have to cut-and-paste it, surely you can explain why a person who believes themselves to be innocent should massively disrupt their life voluntarily.

Anonymoussays:

‘If the DOJ is so confident in their case, why would it support the destruction of evidence?’

even more to the point, why did it sit back and do nothing to prevent the destruction of the data? basic answer being that it knew from day one that it had no case and was totally reliant on the speed and ferocity of the raid and the name it has, DoJ, to get all it wanted, from the arrests, to the extradition, to the conviction. it never for one second considered there being any ‘stand against it’ and when it came, it started to do all the things it shouldn’t have done to try to preserve it’s image. considering the consequences there would have been against Dotcom had he done anything like the things that the DoJ have done from the beginning, the court should lock them all up and throw away the key! they role is in the name for Christ’s sake! if this is the measure of a ‘Department of Justice’, it’s not a mucher!!

Anonymoussays:

To my knowledge the USG has never encouraged anyone to wipe the servers, and it seems highly unlikely (bordering on the absurd to suggest otherwise), no matter what broad-brush impressions KD’s counsel may try to create, that the USG would ever do so.

My understanding is that servers were seized, data copied from them that was deemed by the USG to be sufficient for proceeding with a criminal prosecution, and that the matter from that point on was purely a private one between the server companies and KD.

madasahattersays:

Re: Re:

I have not seen reports were Leaseweb’s servers were ever copied by anyone to preserve the evidence. Evidence was destroyed without the US intervention to preserve it. Basically this gives KDC’s legal enough ammunition to destroy the case. Evidence destruction is a big mistake because the argument can be made that the government cherry picked what they wanted preserved. I do not doubt there is enough “evidence” that when cherry picked could convince a jury of guilt.

Mike Masnicksays:

Re: Re:

To my knowledge the USG has never encouraged anyone to wipe the servers, and it seems highly unlikely (bordering on the absurd to suggest otherwise), no matter what broad-brush impressions KD’s counsel may try to create, that the USG would ever do so.

The DOJ clearly said it was okay to destroy the evidence. If you don’t see a problem with that, you have bigger issues to deal with.

My understanding is that servers were seized, data copied from them that was deemed by the USG to be sufficient for proceeding with a criminal prosecution, and that the matter from that point on was purely a private one between the server companies and KD.

That’s about the biggest load of pure bullshit you’ve spewed in a long time. Yes, the USG cherry picked certain data to make their case, and then allowed the rest to be deleted, even if it contained exculpatory evidence. How could you not see a major problem with that?

As for the “purely a private matter” — that’s insane. First, we’re talking evidence in a criminal case. That’s not purely a private matter. Second, the very same DOJ who gave the “okay” on destroying the evidence ALSO froze ALL of Dotcom’s assets meaning that the “purely a private matter” between one party who had both hands clasped behind his back by the DOJ. That makes the DOJ very much a party to this.

Mike Masnicksays:

Re: Re: Re: Re: Re: Re:

I noted “to my knowledge”. You appear to have information I do not. Might you provide a cite to a third party, non-hearsay source?

Do you not have a PACER account? I’m not going to pay to download the documents for you, which you know damn well make you look foolish.

Anonymoussays:

Leaseweb has made it clear they notified him of the data deletion… that took place in February. It took four months for Dotcom to start crying a river, after being told in advance and at the time it happened? He obviously didn’t care much for that data. Maybe he even let them intentionally with wishful thinking that the evidence proving he is guilty was deleted as well.

John Fendersonsays:

Re: Re:

Agreed. As I’ve said before, when this stuff started coming out, I thought that Dotcom was likely guilty. Every action the DOJ has taken since then, though, has indicated that they don’t have a case. As a result, I now think Dotcom is likely innocent.

What I have a hard time forgiving is that the DOJ is putting me in a position where I have to defend a douche like Dotcom.

Anonymoussays:

If the DOJ is so confident in their case, why would it support the destruction of evidence?

The DOJ just “interpreted” the law, secretly. Again. That’s the how and the why. Sheesh, its 2013! Get with the times already!

You either work for DOJ or know someone who does and don’t like someone? The DOJ will overcome all laws, constitutions and common sense to help you out! (A-Team theme song plays)

Anonymoussays:

It does seem clear that…the EFF sent Leaseweb a notice to preserve the data, as it was a part of an ongoing criminal case.

While it probably is not surprising to you because you do not practice law, it is surprising to me that the EFF would call for the preservation of data on the stated basis. Recall that the EFF’s role was limited solely to trying to enable certain Megaupload “customers” access to data they had uploaded for storage on the site. Rights holders were not averse to such access if procedures were put in place to mitigate the retrieval of customer data uploaded in contravention of the holders rights.

Back to the DOJ, I have not the slightest doubt that if the DOJ was in any manner blessing/encouraging/etc. evidence, a hue and cry would have been raised throughout the entire legal community. Spoilation and/or destruction of evidence is a matter having serious consequences for both the outcome of a case and any attorneys involved. No hue and cry has been forthcoming, which should tell you that perhaps a bogus issue is being promoted for tactical and public relations reasons.

lindsay g.says:

people destroy evidence, due to other with wrongful intentions towards one another.

The straight up cause of all situations that I have seen happen repeatedly. Is that one person that is trying their damnedest to do whats right for them and otheers around that they care about.This person having “good intentions”, and want to be trusting of nearly everyone in the world. There’s always someone out there wanting to get a greedy buck, and/or go the “easy” way out in their greedy miserable cruel intentioned “ill will” approach in life. S thus this othere person gets used, manipulated and taken advantage of by this “ill willed slim ball”. because the slim ball that has to go and take some so genuine and beautifully creative strong willed person that has alot to offer to their loved ones and then some. the ill willed individual will do just about anything to make sure they keep the trusting smart and honestly humble person from succeeding in anything. only because that ill willed and now manipulative person cannot stand seeing someone else succeed in being kind and will do anything to keep them from doing whats right in finding life solutions to worldly problems. 9 times out of 10 its because the good guy caught the bad guy being fake and called them out on being hideously wrong and the good guy wont let the bad guy get away with being cause red handed. so, in result causing more problems for the ill willed individual. This also leads to the next stage that the bad guy usually if they have the nerve to do. is that they end up going threw great lengths as far as to making sure the good guy stays down, usually buy being a two faced fake as liar and that the bad guy ends up starting to ruin the good guys life with lies and could lead the bad guy to do crazy stuff to frantically hide what the good guy knows about the bad guy. which is a f’d up cycle if you tell me. i know this from experience. it happens everyday cause some dumb a’hole had to get greddy and jealous of someones ability to think for them selves and probably others on top of that. jealousy and greedy and laziness causes people to turn their lives into one great big down ward spiral. in all reality what makes the bad guy think thats the easy way to handle life and business dishonestly in the first place? do they think that they really could succeed with cruel intentions in the first place? i call these ill willed individuals “Soul Bitters”, because these kind of people cannot think for themselves nor do they ever want to. they enjoy lieing biting and stealing from the good willed guy. because of their in ability and their lack of drive and confidence with in themself they feel the need to act out of desparation wich can lead into alot of problems the good guy really doesnt need. nor does the good guy deserve to be pushed around nor set up in the first place.sometimes it doesnt always pan out in the good for the good guy only because no one takes their time to truely evaluated the situations like the one i just mentioned. that’s why there’s a saying ” nice guys finished last.” i say yeah only cause people looking into the situation and investigating from the third party judgement. do not see the big picture of whats truely the case in any case even this one i just mentioned right here.
that’s why evidence get destroyed cause it always starts with jealousy greed and embarrassment. the nice guy whos innocent they usually end up in prison doing time for someone or someone and a grow with them set someone up to take the blam for the ill willed bad guy. i know ive seen it and going threw with it myself. some people just cannot seem to get that they maybe good at fooling people but just know this god knows and you i’ll willed individuals wont get aways with things like that for long. one piece of advice “look in that mirror” ask yourself the one question that you dont want to here as you look at the reflection you so desparately hide from, and say this. “who am i trying to convince?” see how far you get before you start to feel that twisting and turning of the evil inside of you so much that you end up looking away from yourself with shame and see if you can look at yourself ever again… tell me how that all pans out for ya…

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