Plaintiffs have produced a number of emails collected from sources other than Hummer indicating that Hummer did not strictly adhere to their asserted practices. In particular, Hank Barry, Alicia Morga and John Hummer used their Hummer Winblad email accounts to discuss Napster-related business after the investment was made. See
Compendium of Documents Missing from the Hummer Winblad Production, Exhs. 165, 181, 183, 185, 186, 188, 216, 231, 238, 241, 245, 248, 267 and 275. Furthermore, as Hummer admits, plaintiffs obtained over 2,100 emails from the Napster trustee in which John Hummer was the sender or recipient, demonstrating that Hummer Winblad email communications regarding Napster did not cease after the distribution of the June 3, 2000 email. There was clearly some amount of email traffic on the Hummer servers related to Napster after the number of produced emails dropped off in June 2000. The precise number, of course, is impossible to determine given the fact that emails on Hummer Winblad servers were routinely deleted. As the party at fault for failing to preserve the emails, Hummer would typically bear the consequences of this uncertainty. See
National Ass'n of Radiation Survivors, 115 F.R.D. at 557 (holding that where “the relevance and resulting prejudice from destruction of documents cannot be clearly ascertained because the documents no longer exist ... the culpable party can hardly assert any presumption of irrelevance as to the destroyed documents”) (internal quotations omitted); see also
Computer Assoc. Int'l, Inc. v. American Fundware, Inc., 133 F.R.D. 166, 170 (D.Colo.1990). However, because the court cannot conclude that Hummer acted willfully, the presumption of prejudice is not appropriate.