A week ago, we reported that Kim Dotcom publicly accused LeaseWeb, a Dutch hosting company, of suddenly deleting all of Megaupload’s servers. The founder of Megaupload continues to fight legal battles worldwide concerning the shuttering of his file-sharing site. And he wrote on Twitter that “all user data & crucial evidence for our defense [was] destroyed 'without warning.'” LeaseWeb, for its part, defended its actions.
On Wednesday, TorrentFreak published a new e-mail from Dotcom's attorney to LeaseWeb, showing that Megaupload did request preservation of all of its data.
“Megaupload continues to request that LeaseWeb preserve any and all information, documentation, and data related to Megaupload—as destruction by LeaseWeb would appear to be in violation of amongst other things the applicable civil litigation data preservation rules and would interfere with evidence in a criminal matter all of which may subject LeaseWeb to varying degrees of liability,” Ira Rothken, Dotcom’s counsel, wrote. The passage appeared in an e-mail to LeaseWeb’s lawyer, A.H. "Bram" de Haas van Dorsser, in March 2012.
TorrentFreak also linked to a letter (PDF) from the Electronic Frontier Foundation to de Haas van Dosser dated April 2012. The Dutch company, for its part, responded to Dotcom’s new accusations on Wednesday. However, LeaseWeb did not immediately respond to Ars' request for further comments.
“Deaf to any negotiations”
"We have done everything from day one to try and keep that data safe and it was our expectation that the [US federal] court in Virginia was going to come back with a ruling about consumer data and that would enable us to reconnect the servers and reconnect our users with their data," Dotcom told Ars. "LeaseWeb has destroyed that hope that we would be able to do that."
He estimated the data loss at "around 40 percent" of all of Megaupload's data—"at least 40 petabytes."
Rothken's letter details that an Australian company, Instra, even offered to purchase the servers or the data on Megaupload's behalf.
"LeaseWeb put up so many hurdles where they wouldn't even engage in negotiations," Rothken told Ars. "LeaseWeb was deaf to any negotiations. Their so-called desires to deal with Megaupload were illusory."
“LeaseWeb B.V. was under no legal obligation to retain the data”
In response to the accusations, Alex de Joode, LeaseWeb's senior regulatory counsel, wrote:
LeaseWeb B.V. is aware of the e-mail that Megaupload refers to and points out that the mentioned e-mail does not change our side of the story or the fact that LeaseWeb has exerted every reasonable and lawful effort to keep the Megaupload data alive. Megaupload had 630 rented dedicated servers with LeaseWeb B.V. For clarity, these servers were not owned by Megaupload, they were owned or leased by LeaseWeb B.V. For almost a year these servers were being stored and preserved by LeaseWeb at its own costs. The Megaupload request was part of a larger discussion while the servers were still racked. On March 29, 2012 the servers were stored and preserved, the initial Megaupload request pre-dates this. I see therefore no discrepancy between our statement and the facts.
The company continued, saying it told Megaupload that it would reserve the right to delete the data by April 14, 2012.
LeaseWeb B.V. did not receive any response from Megaupload to our reasonable and legitimate questions with respect to (Megaupload’s request to) preservation of the data. In fact, we did not receive any response from Megaupload or its lawyers to our message of April 13, 2012 or to our reprovisioning notice of January 11, 2013.
Regardless of receiving no response from Megaupload, and its failure to provide us with the reasonably required information, LeaseWeb B.V. decided to continue to store the servers and to retain the data thereon for almost a year (until February 4, 2013); even though LeaseWeb B.V. was under no legal obligation to retain the data, and that LeaseWeb B.V. did not receive any compensation for its efforts.
LeaseWeb also noted Megaupload's contract fell under local Dutch laws (which protect LeaseWeb in this instance):
[t]his means the termination, and subsequent data retention needs to be valid under Dutch law. As there was no claim from the Dutch authorities on the data, the data was not subject to evidence rules. Also Dutch and European Privacy legislation prohibit giving third parties (i.e. Megaupload customers, or Instra) direct access to their data.
As part of the termination of the contract, LeaseWeb asked Megaupload to come up with a lawful proposal to acquire the dedicated servers from LeaseWeb. Unfortunately, Megaupload never did submit a lawful proposal.
Rothken, Megaupload's California-based attorney, said that Megaupload was considering further legal action against LeaseWeb in the Netherlands. Megaupload would also raise this issue in the company's ongoing case in the United States.
"In our view, LeaseWeb acted like a corporate radical by destroying data in the largest corporate copyright case in history," Rothken concluded. "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."
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