Paul Duffy has a problem. He's counsel of record for AF Holdings, to the extent that AF Holdings even is a client separate and distinct from Prenda Law. But in between the time he filed the motion for voluntary dismissal and now, the April 2 hearing in Los Angeles happened where he (among other Prenda Law people) plead the Fifth Amendment in refusing to answer questions about AF Holdings. This act put him in a bind: if he opened up his mouth in San Francisco to talk about AF Holdings it could inculpate him in its affairs. You can't assert the Fifth Amendment in some contexts and waive it in others, that's not the way it works. Anything he says about AF Holdings in some proceedings can and will be used against him in others.

On the other hand, as counsel to a purportedly separate and distinct client, he can't just blow off the hearing, even if that might be the best option for saving his own skin. AF Holdings, whoever it is, is staring down the barrel of a judgment on the order of tens of thousands of dollars against it. If it were truly a separate client it should be able to count on him to try to prevent such a judgment. Note: this doesn't mean the client could expect him to prevail, but it could expect him to at least give it the ol' college try. That meant that he couldn't just not show up (which apparently was what he did — or, er, didn't do — at a hearing yesterday in Illinois). He couldn't just withdraw as counsel, either, because that generally requires the court's permission once a lawsuit is underway in order to make sure a client isn't being left high and dry (see, for example, the earlier motion to substitute Duffy for Gibbs, which they needed the court to approve). Nor could he choose to just not argue, or purposefully argue badly, without abrogating his ethical duties to the client. But it was unclear what he could argue that wouldn't further implicate him in the misdealings of the Prenda Law enterprise.

In any case, as Judge Chen honed in on later in the hearing, usually a plaintiff is happy for there to be spoliation problems. "Normally if you argue spoliation, you win the case!" It seemed very strange, he observed, to give up because you are claiming spoliation (and, he asked later, if it really were such a problem, why did you wait to withdraw the case and not do so as soon as you learned of it?).

The instant discovery dispute ultimately centers around a particular bit of software that the defendant had running on his computer – C-Cleaner. Plaintiff alleges, without any support other than an “EHow.com” user submission, that using C-Cleaner is “proof” that Defendant was destroying evidence.

As described in the annexed declaration of a Certified Computer Examiner, C-Cleaner’s default functions (the only ones used by Defendant) do not permanently delete data, and only affect data that the average user does not even know exists.

It removes unused files from your system - allowing Windows to run faster and freeing up valuable hard disk space. It also cleans traces of your online activities such as your Internet history. Additionally it contains a fully featured registry cleaner.

9. CCleaner is not a “wiping program” and is not designed to “permanently remove information from a computer.” By default, CCleaner removes temporary internet files and other system files.

10. ...For the most part, these are files that the average user does not even know exist and cannot even be viewed by most users. None of the files CCleaner deletes would be within the scope of discovery requests or be considered ‘reasonably accessible’ under FRCP 26.

24. The mere existence of a program such as CCleaner is not sufficient to support an allegation that a party has engaged in inappropriate conduct or deliberately attempted to destroy information. I have examined hundreds of hard drives and many of those contained the CCleaner program...it can be considered a useful program.

25. ...I have worked on many other cases where different programs were used to eliminate data – programs specifically designed for this purpose such as “Evidence Eliminator”. Unlike CCleaner, Evidence Eliminator wipes the free space of the hard drive by default. And in all such cases, the programs had been uninstalled before I imaged the hard drive for examination.”

Furthermore, allegations of spoliation are extremely serious, and the court urges Plaintiff to review the facts very carefully before pursuing this avenue based solely on an eHow.com article. In particular, Plaintiff should review the expert declaration that Navasca filed with his letter brief, to fully understand the purpose and effect of CCleaner.