Cox Communications Alleges Concealment of Evidence, ‘Misstatements at Trial’ Amid Effort to Overturn $1 Billion Copyright Infringement Verdict

In late 2019, a jury slapped Cox Communications with a staggering $1 billion fine as part of the mega-ISP’s copyright infringement legal battle with the major labels. Now, Cox has accused the plaintiffs of failing to produce (and misrepresenting) “certain documents related to a key exhibit” – “a hard drive allegedly containing contemporaneously downloaded files that” were infringed by Cox subscribers.

The stunning allegation came to light in a recent filing from Atlanta-headquartered Cox Communications and its counsel. As mentioned, a jury ordered the ISP in late 2019 to pay an even $1 billion for the 10,017 works that its subscribers allegedly infringed upon during the period in question.

Cox promptly fired back against the “shockingly excessive” ruling, but 2020 saw the presiding judge dismiss the majority of the ISP’s challenges to the verdict – albeit while acknowledging that settling upon a total of 10,017 allegedly infringed works may have been “premature,” owing to the possibility that “certain works at issue were derivative of others.” But another setback arrived in early January, when the effort to cut the list of purportedly infringed works by 2,438 – for a $243.8 million smaller verdict – was tossed by the court. Cox then appealed.

And as initially highlighted, Cox Communications has now taken aim at the plaintiffs’ alleged “misstatements at trial” and failure to produce evidence.  

The hard drive at the center of this latest legal move “contained files proving Cox subscribers’ direct infringement of” the works in question – according to the plaintiffs, Cox claims. Moreover, these plaintiffs during the 2019 trial introduced infringement notices sent by MarkMonitor (an internet-focused infringement-monitoring service) to Cox between 2012 and 2014, a spreadsheet elaborating upon the findings and those of a similar service called Audible Magic, and the hard drive, per Cox once again.

“The hard drive purportedly contained the very files that MarkMonitor and Audible Magic verified before sending notices between 2012 and 2014,” the text proceeds. “So foundational was the Cox Hard Drive to Plaintiffs’ case that their expert, George McCabe, testified that each work in suit needed to appear on the drive before he could opine that the work had been infringed by a Cox subscriber.”

Notwithstanding Cox’s “extensive discovery concerning MarkMonitor’s involvement in the sending of notices and compilation of evidence of alleged direct infringement,” the major labels allegedly “disclosed nothing that demonstrated when and how the files on the hard drive were first downloaded from the internet.”

And these alleged nondisclosures, Cox maintains, “concealed” the “critical detail” that “the files on the Hard Drive were not downloaded contemporaneously with MarkMonitor and Audible Magic’s alleged detection and verification of infringement, but were downloaded years later, in 2016, as part of a litigation-focused effort to recreate evidence.”

Expanding upon the points, Cox says that it had moved to exclude the hard drive pre-trial because “the drive’s metadata showed that the drive itself was created in 2016.” Moreover, the plaintiffs allegedly maintained that it “‘contains digital files that were the basis of MarkMonitor’s infringement notices to Cox,’ downloaded when the notices were sent between 2012 and 2014.”

Bearing these claims in mind, discovery then “revealed a strong likelihood that the plaintiffs had concealed materials and information that would have demonstrated that all the files on the hard drive were downloaded in 2016—and not as contemporaneous verification of alleged infringement before the notices were sent between 2012 and 2014.

“The public record in this case and the record in Cox strongly suggest that Plaintiffs produced a near-identical hard drive” in their lawsuit against another ISP, Charter Communications, the multifaceted document proceeds. However, “pursuant to an order compelling production,” the Charter hard drive contained “packet capture data,” besides the separate introduction of a “Hash Report.”

The packet capture data, Cox indicates that the plaintiffs had relayed, was “recorded by MarkMonitor to show ‘when and where each of the audio files on the drive was downloaded’ from peer-to-peer networks.”

Plus, Charter allegedly sought the Hash Report “to determine the extent to which Plaintiffs’ counsel and MarkMonitor were unable to re-verify in 2016 the infringement they alleged from 2012 to 2014—in other words, because of its propensity to demonstrate the extent to which Plaintiffs’ ex post facto attempt to recreate evidence was unsuccessful, the Hash Report sheds light on the reliability of the methodology.

“All of this should have been disclosed during discovery in Cox—indeed, it all falls within categories of information Plaintiffs either pledged to produce or were specifically ordered to produce by the district court,” the filing states towards its end. Finally, the “discovery violations and misstatements at trial fundamentally prejudiced Cox’s ability to challenge Plaintiffs’ proof of direct infringement—a prerequisite for holding an ISP like Cox secondarily liable.

“These documents will provide the Cox court with a full record to decide Cox’s anticipated Rule 60 motion, the deadline for which is January 12, 2022,” the document concludes. Separately, the major labels in June filed a different copyright infringement lawsuit yet, this time against Norwalk, Connecticut-headquartered ISP Frontier Communications.