Bellwether trial update: trolls are trying to sabotage the process

Posted: October 17, 2012 by Raul in Bellwether trial, Lipscomb, XArt
Tags: , , , , , , , , , , , , , ,

By Raul

A bellwether trial, designed to test the validity of trolls’ evidence, was widely covered by press over the last week. Being obviously serious about his intentions to bring this business to completion, Judge Baylson setup a very tight schedule that included a trial date in April 2013. Not surprisingly, Lipscomb/Fiore/Malibu Media are currently trying to sabotage the process in a hope that Baylson will dismiss the case on the procedural grounds. It’s an awkward situation: all 5 defendants will be happy if this nightmare is over, and, of course, we will be happy for them too, yet in a long run a premature dismissal will result in continuing extortion and much, much more victims.

Raul originally posted the following as a comment to the original post. I don’t think that anyone disagrees that Raul’s comment deserves a wider audience. Hence, a separate post.

In case people missed SJD’s Twitter feed yesterday, Doe Defender Charles Thomas’ blog details the development pointed out to me without adding any comment, so allow me. :)

On 10/15, at the 11th hour, just before the deadline was set to expire for Troll Fiore to effect service on the Does, they file their Second Motion for an Extension of Time to Effect Service. The motion requests an additional 30 days insofar as Fiore does not have the personal info for Doe 6 because:

On October 3, 2012, this Court entered an order granting in part and denying in part John Doe 6’s motion [Dkt. 24]. Plaintiff has forwarded this order to the ISP to obtain John Doe 6’s identity and is waiting on the response.

In your Bullshit Alarm clanging?

Charles Thomas files his Brief in Opposition to this motion on 10/16 (embedded below) and makes many excellent points as to why the motion should be denied and I’ll just point to a few of my favorites:

This delay is outrageous, and clearly leaves the impression that the Plaintiff is less than enthusiastic about actually trying these cases. Indeed, taking these cases to trial is not consistent with the so-called “copyright troll” business model — raise the spectre of statutory damages to obtain quick settlements.

and

…this maneuver has an secondary effect on the Defendants and the Court which very clearly evidences the Plaintiff’s blatant attempt to undermine this Court’s clear directive to advance this case a timely trial.

and

In essence, the longer the Plaintiff can avoid laying its cards upon the table, the more profitable its shadow business. Already, the Court’s decision to schedule a bellwether trial is rippling through the media and presumably the Plaintiff is aware of the intense scrutiny that this trial will generate.

and IMPORTANTLY

In Paragraph 4, Plaintiff states that it has forwarded the Court’s October 3 Order to Comcast, but does not indicate when it did so — this is a very telling omission. Clearly, if Comcast received the Order on October 3 or 4 and failed to reply timely, Plaintiff would surely note all the relevant dates of communication and be well within its rights to lay the blame squarely on Comcast’s shoulders. That is has not spelled out the dates in question suggests that the cause of the delay was simply that Plaintiff failed to act.

Based on these points Thomas arrives at the logical conclusion that Fiore/Lipscomb are trying to scuttle the lawsuits before they get to a Bellwether Trial:

All of the above amply demonstrates that Plaintiff is doing its level best to remain in the shadows, almost goading the Court to dismiss its Complaint on procedural grounds — and thus to avoid a precedential ruling that could dismantle what Judge Wright of the Central District of California calls “essentially an extortion scheme.”

Thomas followed his hunch that Fiore never contacted Comcast and the lie is revealed in an Addendum filed also filed on 10/16:

John Doe 6 has now learned through a conversation with Comcast’s Legal Response Center that Plaintiff never informed Comcast of the Court’s ruling.

and

This directly contradicts Plaintiff’s assertion in the Second Motion that it has forwarded the Order to the ISP to obtain John Doe 6’s identity. This even more strongly suggests that Plaintiff is actively attempting to evade judicial oversight of its highly profitable settlement machine.

In closing Thomas notes that such “shenanigans” should be sanctioned as he had suggested in his Brief.

Update

10/17/2012
Two more defense attorneys on this case filed very similar oppositions to plaintiff’s motion for extension of time to serve. Leonard French was one of them. Note that C. Fiore filed a response to at least one motion, claiming that the Mafioso family plaintiff “welcomes the opportunity to try this case on the merits” and that “defendants [sic] actions make clear that they do not want to proceed with the Bellwether trial.” Pot full of BS calls the kettle back? The claim that defendant made in his addendum (that plaintiff disobeyed the court’s order to forward its ruling to Comcast, and lied that he did) has not been addressed.

In other news: a telephone conference will be held on 11/1/2012. DieTrollDie is invited :) The phone conference will be transcribed and added to PACER.

10/18/2012
Judge Baylson issues an order on Plaintiff’s motion to extend the time. Granted in part and denied in part. The most interesting part is that Baylson wants trolls’ memo to be filed under oath, meaning he no longer takes their word.

10/23/2012
A follow-up post: Bellwether trial update: a delicate art of bullshitting under oath.

11/2/2012
Bellwether trial update: Telephone conference, new filings. New updates will be posted there.

About these ads
Comments
  1. that anonymous coward says:

    We expected any less?
    Someone turned on the lights and they are trying anything they can to flee.
    One wonders if all of those vigorous defenders of copyright trolls will dare to chime in and explain how a lawyer ignoring the orders of a court and trying to throw the trial before it even begins is just a little booboo or the court being mean to them.

    You filed a case and your surprised when a Judge says the hall is rented, the band is engaged, lets dance.

  2. The Tod says:

    I am shocked!!!! A troll lying to a judge? Is this being accurately reported?

  3. AC says:

    It looks like DTD is invited to the telephonic status conference on 11/1. Will you be listening in DTD?

    https://www.leonardjfrench.com/documents/blog/2012_10_17-2088-Notice_of_Telephone_Conference.pdf

    • DieTrollDie says:

      Yes I get a kick each time I see my name on the case papers. I think Fiore would lose his mind if I tried to call in. Also there is no way to verify to the court who I am.

      DTD :)

    • sharp as a marble says:

      dtd should chime in if for no other reason than to explain that he is not a party to the suit, and explain how his torpedo came to end up filed in the case.

  4. Subscribe says:

    Subscribe

  5. SaveADoeStarveATroll says:

    I shouldn’t be, but I am still amazed at how low these guys can stoop.

  6. The Tod says:

    I wonder what a penalty of perjury is? Hehehehe! Foor-ah might not know.

  7. John Doe says:

    With these trolls trying to sabotage the Bellwether trial and Kotzker not responding to reasonable discovery requests in Fantalis’ trial, you’d almost think that the trolls are trying to prevent justice from proceeding because they don’t have a case or something. ;)

    • SJD says:

      These two cases are on the spotlight, but there are numerous others. Just yesterday Kotzker hastily dismissed a named defendant when he learned that she had prepared to fight. Cowards and crooks.

      • John Doe says:

        What case was that?

        Kotzker is clearly very well organized, much more than previous troll lawyers. But I suspect he’s reached his limit with all the Does fighting back. He might have to dismiss people who fight just to save time at this point (and of course because he will lose).

  8. AC says:

    Here’s my take on the latest Bellwether developments:

    I spend a lot of time going back and forth on whether the Trolls are evil or incompetent. I think where I stand is that there is a tier of Trolls (Lipscomb, Steele) who are just evil. They know the full depth of their scam and are out to profit as much from the anguish of innocent people as they can.

    Then I think there is a tier of trolls who are just so massively, probably even willfully, ignorant (Kotzker, Cable, Fiore). These are lawyers with no real stellar educational background, no real accomplishments, and generally second-rate nobodies as far as the law profession is concerned. They get sold a line from guys like Lipscomb on how IP tracking is 100% accurate and they’re stopping dirty infringers from stealing, and they’ll make tons of money with no real work because these cases are open and shut.

    So let’s look at the instant case. We know Fiore is completely ignorant on technology, especially the technology involved here. He’s on the record saying that Bittorrent is run by some Russian guy named Rah-ool on a sever in Eastern Europe or Asia located in a clandestine bunker.

    So when Fiore says that he “welcomes the opportunity to try this case on the merits,” I have to pause and think maybe he legitimately thinks that this case will win on the merits. It’s as if he was told by Lipscomb that “These are the infringers and our foolproof technology caught them” and that’s as far as his understanding goes. In his mind, the merits are IP address == person, and that’s all he has to show in court to win.

    So let’s back up and look at the motion for extension of time. Is it a calculated measure to try and throw off the case based on procedural issues? Or is Fiore just a complete screw up? I’m leaning toward the latter. He didn’t serve the ISP with the order, he didn’t respond to the memorandum, he didn’t file the motion for extension of time until the 11th hour… he’s just a bone-fide Grade A screw-up. I seriously doubt this was their master plan to weasel out of the bellwether trial.

    Regardless, I’m satisfied with the Judge’s ruling. As much as I appreciate Doe Defendants would like this to be dismissed even on procedural grounds, it is true that it would be without prejudice and the trolls could simply refile, thus bringing everything back to square-one. However, I’m glad he is also holding Troll Fiore accountable for violating the order and will potentially sanction him based on Fiore’s (all too likely insufficient) response.

    I look forward to reading the oral transcript of the 11/1 conference when it’s available on PACER (I’m glad the Judge said it will be available there. I think he knows full well that these transcripts are invaluable to us as a community).

    • SJD says:

      While I agree that there is a clear evilness-sloppiness gradient, you can’t place trolls to discrete slots. Lipscomb, Steele — yes, pure evil. I would place Wayne O’Brian on the other end. Everyone else occupies the middle. While some are merely local representatives, it does not mean they are ignorant puppets. Take Timothy Anderson for instance: not much less evil than his “boss.” I don’t know Fiore well, except that his IQ is not that high (to put it politely), but Kotsker is ~ 0.8 evil on the scale 0 – 1 IMO.

      • AC says:

        Yes, I agree a sliding scale is probably better representation. Still it says a lot that if you’re playing this game the best you can hope is that either you’re an absolute moron or an evil asshole.

  9. SJD says:

    My broken Legalese did not allow me to understand how damning the order is. I was told by lawyers that if a judge wants a lawyer to file a memo under oath, it translates to English that judge no longer takes lawyer’s word, i.e. strongly suspects that he lied.

    • Raul says:

      This places Fiore in a double bind, if he tells the truth under oath he may get hit with sanctions and, yet, if he files a falsehood under oath to avoid sanctions he can face perjury problems.

      • sharp as a marble says:

        perjury is the tip of the iceberg if he is caught in a lie, lost license/disbarment would follow that crap.. and simple sanctions with an order to tell every judge across the country about malibu’s lawyer being sanctioned would kill their trolling almost overnight. you think they have problems now wait till the end of the month.

    • Anonymous says:

      It really makes you wonder just how incompetent and/or desperate these guys are. I can see Steele and Lipscomb cheering their pawns into a corner (since it isn’t their own career on the line), but for the pawns to go through with it and end up in a situation like this…

      Really speaks to the quality of attorneys guys like Steele and Lipscomb have to settle for.

  10. sharp as a marble says:

    hahahahahahahahaha sux to be trolls

    sorry, but someone had to laugh at them

    • Anonymous? says:

      I have a question for anyone who may be qualified to answer it. The 10/3 order from Baylson denied the MTQ, but granted the motions to proceed anonymously. What does that mean? If he’s now telling Fiore to make sure he gets the names of the defendants so he can serve them, how is that anonymous? Maybe I’m just misunderstanding something…

      Thanks in advance for anyone with info.

      • Charlie says:

        The Order allows the case to go forward through discovery and dispositive motions without revealing the Does names to the world. The Does will only be identified publicly if the case does, indeed, go to a trial.

      • SJD says:

        It’s anonymous for the world, not for the court & plaintiff. There are three main boolimen trolls utilize to scare people into settling:

        – Insane statutory rates
        – Cost to defend
        – Embarrassment danger to employment/marriage and Due to stigma associated with pornography (and, to much lesser extent, with copyright infringement in general)

        So allowing users to proceed anonymously, the third problem is eliminated for the time being.

        Also, if you read Fantalis’s last Answer, you would see that he was declined a loan to refinance his mortgage — only due to his involvement in a lawsuit.

        World in general does not know how weak the evidence in these case is, thus ruining one’s life based on frivolous accusation only is, unfortunately, a reality.

  11. Another John Doe says:

    I too am interested in the 11/1 conference call and all activity related to the Bellwether trial. While my case is not part of that activity, I am part of one of the later cases and am hoping for a good outcome on this one which will hopefully stop the insanity on the rest. Question – some of the defendants are marked as terminated then listed further down. What is the significance of that? Secondly, I saw that two JDs in 03145 were represented by French, and then all 38 JDs were represented by French. Now it appears the full 38 are not. What was that all about?

  12. [...] They don’t have sense enough to stop, so there is going to be a meltdown in the future. The PA Bellwether case is on a fast-track, with a recorded status hearing scheduled for 1 Nov 12. It will be fun to [...]

  13. AC says:

    There was an addendum filed yesterday in response to the motion for extension of time, but I can’t seem to find the case on PACER to see exactly what it says:

    http://www.rfcexpress.com/lawsuits/copyright-lawsuits/pennsylvania-eastern-district-court/94473/malibu-media-llc-v-john-does-1-22/summary/

  14. AC says:

    Where are you DTD? PAED is looking for you and can’t find you!

    Copy of Notice dated 10/10/2012 and envelope returned from the U.S. Postal Service addressed to JOHN DOE, A/K/A: DIETROLLDIE for the following reason: Returned to Sender. Insufficient Address. Unable to Forward. (ems) (Entered: 10/18/2012)

  15. [...] Bellwether trial update: trolls are trying to sabotage the process [...]

  16. That Anonymous Dude says:

    When in doubt, have Keith Lipscomb come and file a motion saying that a pipe burst.

  17. Raul says:

    Hearing today before Judge Baylson, any news?

  18. [...] SJD on Bellwether trial update: trolls are trying to sabotage the process [...]

  19. [...] SJD and others have been reporting on this lawsuit as it progresses and SJD’s coverage is here, here, here, and [...]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s