The studios and RealNetworks squared off in federal court Monday over Real's alleged spolitation of evidence in advance of the studios' lawsuit over the RealDVD ripping software. Real's defense to the alleged document destruction? It didn't expect to get sued, and thus didn't think it had to preserve potential evidence, reports Wired:
"We didn't think litigation was probable," Leo Cunningham, a RealNetworks attorney, told U.S. District Judge Marilyn Hall Patel during a brief hearing.
Not probable??? Real set out to develop software that enables the copying of DVDs and was not aware of Universal v. Corley? Of 321 Studios? Of Kaleidescape? If there is one ironclad rule of life, it is that if you run a business that gives off even a whiff of CSS circumvention, litigation is not just "probable" -- it is virtually certain. Real may have other viable arguments to stave off the studios' request for sanctions -- it's a bit hard to tell given all the redactions in the briefs -- but the "we-didn't-think-litigation-was-probable" defense doesn't pass my personal laugh test. What's next? A claim that the sun will rise tomorrow in the east is "speculative" and "uncertain"? More on the spolitation issue here.