- Judge Baylson wants to test copyright trolls’ evidence in a bellwether trial.
- Bellwether trial update: trolls are trying to sabotage the process.
- Bellwether trial update: a delicate art of bullshitting under oath.
Judge Baylson held a telephone conference with plaintiff’s and defendants’ attorneys yesterday. Some notable points:
Baylson casually mentioned (at 5:50) that he had notified the Judicial Panel on Multidistrict Litigation about his cases. Judge’s comment seems to have caught Keith “Weasel” Lipscomb off guard. He obviously sounded alarmed. It is not clear why Lipscomb mentioned Fantalis’s case, talking about it as one at a very advanced stage (pity that the judge does not know that Lipscomb meant an advanced stage of the discovery dodging).
Lipscomb mentioned that he filed several amended complaints (one of them is embedded below) and served the defendants. Lipscomb’s amended complaints include additional instances of infringements for the same people: more movies and at least in one case another pornographer, Partrick Collins, was added as a plaintiff. An open question is why Lipscomb has been sitting on this (allegedly credible) information and did not claim those infringements in the original complaints. I would be happy to listen to opinions.
Charles Thomas filed a motion for sanctions against Lipscomb because of his outrageous behavior. In short, Lipscomb filed “notices” of service without defendant names being redacted, which clearly contradicted the judges’ order. It took a lot of effort (notices were filed on Friday at 8 pm) for defense to find an emergency clerk and seal those documents. Should anyone have accessed those documents with Recap plugin running (and many of us have this plugin installed) over those two hours when documents were available on Pacer to everyone, the names would be posted on the archive.org, and it would be impossible to remove them. Fortunately, it did not happen, but in order to minimize the likelihood of unfortunate events, I urge defense attorneys to contact me immediately if a similar situation happens in the future (remember: we deal with the very bottom of the legal profession here, and there are no guarantees that such “bloopers” won’t repeat). I’ll contact the people who are most actively recap court documents and ask them to refrain from accessing particular filings.
If you want to save the audio file of the hearing, right-click here.
- On 10/8 Doe # 16 (Ronald Smith — 12-cv-02078) filed his Answer and Counterclaim. He lists 10 affirmative defenses and 4 counterclaims:
- Misuse of Copyright
- Declaratory Judgment of Fair Use
- Declaratory Judgment of Implied License
- Declaratory Judgment of Non-Infringement
- On 11/15 Lipscomb replied (opposed) to the motion for sanctions. Dogs, homework, honest errors… Deja vu all over again.
- On 11/16 Doe # 6 (Charles Thomas — 12-cv-02084) moved to dismiss certain counts the infringement due to lack of standing (invalid, fraudulent copyright registration), and to dismiss the entire amended complaint because
…nether Malibu Media nor Patrick Collins have obtained the necessary certificate of authority from the Pennsylvania Department of State, and are therefore barred from commencing a civil action in Pennsylvania under 15 Pa.C.S.A. §§4141 & 8587.
See the brief in support of the motion to dismiss (Exhibits are not yet recapped).
- On 11/13 Jordan Rushie appears as a counsel for Doe # 13 (12-cv-02088).
- Two other counsels, Leonard French (Doe #1) and Thad Gelsinger (Doe #14), requested extension of time to file their answers (Documents 51 and 52).
- On 11/20/2012 Jordan Rushie and Marc Randazza (yes, you read it right) moved to dismiss the amended complaint. At this moment I experience some kind of cognitive dissonance and will refrain from comments. The memorandum per se is rather good, although has some dangerous provisions (like declaring swam theory absolutely valid and joinder based on it absolutely proper: locally, tactically it maybe brilliant, but it may have long-time negative consequences). Again, I digress: I’ll postpone expressing my thoughts till after the holidays.
- On 11/28 the Court held an extensive Rule 16 pretrial conference with counsel on November 28, 2012, following the filing of a Rule 26(f) Report. Although the record of the hearing should be consulted for details, the Court summarizes scheduling orders as follows:
- The three cases noted above will be consolidated for all pretrial purposes.Therefore, counsel and the Court will use the caption of Civil Action 2012-2078 in all future matters filed with the Court. No agreement by counsel or decision by the Court has been made concerning consolidation other than for pretrial purposes.
- Plaintiff will file its responses to the Motions to Dismiss by Wednesday, December5, 2012. Defendant shall file one or more reply briefs by December 19, 2012.
- The Court encouraged counsel to have detailed discussions about the scope of discovery and any objections that have been or will be served to written discovery requests. If issues remain unresolved, the Court requested that any Rule 37 motions to compel be filed by January 10, 2013. The Court will likely have a phone conference with counsel to discuss these objections and may order a hearing or more detailed briefing. The Rule 37 motions should state the grounds in some detail, but counsel need not file a memorandum of law.
- Plaintiff indicated that it will be serving several notices of third party depositions under Rule 30(b)(6) to take place in January, of internet service providers and companies that perform search engines. The Court anticipated there would be some delay in the actual deposition to allow for the third parties to consider the document requests and negotiate production of documents. The Court understands that all counsel in this case will serve any documents received from a third party on all other counsel in this case.
- Plaintiff will provide identification of its experts by December 21, 2012, together with resumes and other biographical material pertaining to its experts. The Court encouraged plaintiff’s counsel to be prepared to identify their experts by the end of January, 2013. There was extensive discussion about other discovery matters, but without any rulings.
- Memorandum in Opposition re 55 MOTION to Dismiss Plaintiff’s Amended Complaint filed by MALIBU MEDIA, LLC.
[Signed by Christopher Fiore, but who has any illusion who is the actual author?]