Leaseweb: Second statement on former client MegaUpload

Last week Kim Dotcom tweeted some statements claiming Leaseweb B.V. wiped data from 630 dedicated servers leased to former storage service client MegaUpload. Today we received a message from a journalist stating MegaUpload’s legal team had approached them showing an email that would contradict Leaseweb B.V.’s version of the MegaUpload story. The legal team of MegaUpload says they did place a request showing interest in retaining the data last year, in contrast to our version stating that for almost a year we did not receive a request for access or any request to retain the data of MegaUpload. 

Leaseweb B.V. is aware of the email that MegaUpload refers to, and points out that the mentioned email 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 therefor no discrepancy between our statement and the facts.

To be even more clear about this, I have compiled a timeline below which provides an (non-exhaustive) overview of correspondence on the part of Leaseweb B.V., and MegaUpload (and the interaction between Leaseweb USA Inc. and the EFF).


Timeline – interactions between Leaseweb and MegaUpload and EFF

January 18, 2012 Infamous takedown MegaUpload occurs.
February 3, 2012 Leaseweb B.V. sends ‘Notice of Default’.
February 13, 2012 Leaseweb B.V. sends reminder of ‘Notice of Default’.
February 28, 2012 Leaseweb B.V. responds to MegaUpload.
March 14, 2012 Leaseweb B.V. sends ‘Notice of Termination’.
March 29, 2012 Bailiff verfies 630 servers are stored correctly in basement.
April 3, 2012 Leaseweb USA Inc. receives EFF letter (the email MegaUpload’s legal team is referring to).
April 6, 2012 Leaseweb USA Inc. responds to EFF.
April 6, 2012 Leaseweb B.V. responds to MegaUpload.
April 13, 2012 Leaseweb B.V. responds to MegaUpload.
January 11, 2013 Leaseweb B.V. sends ‘Reprovisioning Notice’.
February 1, 2013 Bailiff verifies 630 are still stored and available.
February 4, 2013 Leaseweb B.V. commenced reprovisioning of 630 servers.

During these interactions with MegaUpload and MegaUpload’s lawyers, Leaseweb B.V. has on several occasions made it sufficiently clear that Leaseweb B.V. was entitled to, and that it had reserved the right to delete the data on or after March 10, 2012. Leaseweb B.V. even moved that date to 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.


Dutch law

We remind you that Leaseweb USA, Inc. is not a party to a contract with MegaUpload. Instead, the contract was between Leaseweb B.V. and MegaUpload. The contract between Leaseweb B.V. and MegaUpload was governed by Dutch law. 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 (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.

I hope this timeline of legal facts and actions by Leaseweb will definitively clarify our side of the MegaUpload data story. Leaseweb as an organization acknowledges and regrets the loss of those who, as a result of taking down MegaUpload, have lost their personal or commercial data.

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