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MegaUpload considering legal action against Dutch server firm after data wipe

By | Published on Friday 28 June 2013


MegaUpload founder Kim ‘Dotcom’ Schmitz has confirmed he is considering legal action against the European server firm that wiped 630 machines containing content uploaded by customers of the now defunct file-transfer service.

As previously reported, it emerged earlier this month that Dutch company Leaseweb had wiped the servers that hosted much of MegaUpload’s European operations earlier this year. The wiped machines contained, according to Dotcom, “petabytes of pictures, backups, personal and business property”.

Former MegaUpload users lost access to any files they had uploaded to the file-storage platform when the US government shut the company down, disconnecting its American servers directly and seizing its dotcom domain in January 2012.

Ever since, various parties have been trying to reconnect those users with their data, with Dotcom’s lawyers asking for frozen Mega funds to be released to fund some sort of data return programme. But the US authorities have, in the main, not been especially sympathetic to any former Mega users who lost their files, pointing out that the defunct service’s small-print advised customers to keep local back-ups of data.

Leaseweb has claimed that it deleted the former Mega files on its servers because no one had been in touch about them for a year, and a letter it sent warning of plans to wipe the data had gone unanswered. And of course, storing 630 full-and-unusable servers is expensive.

But Dotcom disputes those claims, saying that in March 2012 his lawyers wrote to the company requesting the firm hold onto the Mega data for the foreseeable future. In an email to the server firm, now made public by Dotcom, Mega’s lawyer Ira Rothken writes: “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”.

The letter added that “MegaUpload is negotiating with the United States to discern feasibility of consumer data access and the conditions for the same”.

The Electronic Frontier Foundation, which is representing individuals who lost data as a result of the Mega shutdown, also sent a letter, in which it said: “We now write to formally request that you preserve that material both for purposes of contemplated future litigation and as a matter of obligation and courtesy to the innocent individuals whose materials have unfortunately been swept up into this case”.

While Dotcom and Team Mega really blame the US government for the loss of data caused by the Leaseweb wipe, they have confirmed to TorrentFreak that they are contemplating legal action against the server firm.

Rothken told the website: “Leaseweb was put on written notice repeatedly to preserve data relevant to both pending criminal and civil litigation, including potential civil litigation involving Leaseweb. Whether one couches it in terms of e-discovery litigation holds or just being a good corporate citizen we believe that Leaseweb acted inappropriately under the circumstances when they destroyed data”.

But the server company, in a statement on Wednesday, says it is confident that its actions did not violate any laws, because the contract between it and MegaUpload was governed by Dutch law. The firm told reporters: “This 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 (ie MegaUpload customers) direct access to their data”.