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A filing in the three-year-old Napster copyright infringement lawsuit alleged Tuesday that Ann Winblad, co-founder and partner of Hummer Winblad Venture Partners, ordered her staff to destroy emails related to the case.

Attorneys for music labels EMI and Universal Music Group contend the San Francisco-based venture firm not only withheld documents for several years but also sent an email telling staff to delete emails relevant to the case, as part of a reminder message about the firm’s email retention policy.

The filing in the U.S. District Court for the Northern District of California seeks a default judgment against the firm, jury instructions that the firm intentionally destroyed relevant evidence, and monetary sanctions against Hummer Winblad.

Hummer Winblad turned up 272 emails in the week following the firm’s investment in Napster, in contrast to less than 300 emails for a period of more than three years after Ms. Winblad’s missive.

Neither attorneys for the venture firm nor the music companies could be reached for immediate comment. However, Hummer Winblad’s attorneys are expected to file a response in the court case by Friday. A tentative hearing on the matter is slated for early September.
 
Prior Testimony
The latest filing also pits what Ms. Winblad said in prior depositions to what she wrote in an email to her staff. In her deposition, Ms. Winblad denied that she deleted any of her Napster-related email. “All of my emails relating to Napster were preserved by Hummer Winblad,” she said.

In another deposition, another Hummer Winblad partner, Todd Forrest, said Hummer Winblad’s policy was to retain documents pertaining to Napster, as would be appropriate under the circumstances of ongoing litigation before the venture firm’s investment.

“All available evidence shows that Hummer Winblad partners at the highest level destroyed evidence pursuant to an affirmative policy of destruction, for the stated purpose of avoiding discovery,” the filing said.

 Quattrone Comparison

The filing goes on to cite a case involving Frank Quattrone, the former head of Credit Suisse First Boston’s tech group, who sent a similar, but fateful, email to staff, entitled “Time to Clean Up Those Files,” reminding staff not to retain notes and drafts, which ultimately supported his conviction for obstruction of justice.

Ms. Winblad’s email, issued just after her firm invested in Napster in 2000, in part reads “As we have all been required to surrender Napster e-mails, this should reinforce compliance with our long-standing policies. (1) We do not retain e-mails, it is your responsibility to delete your handled e-mails immediately.”

EMI and Universal said they did not know of Ms. Winblad’s email until April, when Hummer Winblad turned in a batch of documents in the 11th hour of the Napster case.

Calling the defendants “prolific email users,” the music labels’ filing also highlights a precipitous drop in submitted Hummer Winblad emails pertaining to Napster.

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