Second Amended Answer; discovery sabotage; hearing on the Motion to Compel
If you follow the news, you certainly know that the people of Colorado have just voted in favor of legalizing marijuana for recreational use. That may help the number one Colorado copyright troll Jason Aaron Kotzker in more than one way:
- He finally can legally possess the substance that can boost thinking outside the box and help generating new ideas how to dodge discovery: Kotzker’s outright denial has become boring.
- After the hearing on Fantalis’s Motion to Compel this past Monday, Kotzker definitely needs some sweet smoke in order to avoid extra expense on toilet paper (and extra pants).
I’ll talk about the hearing in a while, but first let’s recap what has happened on this case since the last time I posted about it.
Second Amended Answer and Counterclaim
The most important event was the Second Answer to Complaint and Counterclaim, which was filed on 10/23.
Originally Fantalis filed the first version of the Second Answer and Counterclaim earlier in August with some procedural violations (without first filing a motion to obtain court’s permission). Kotzker succeeded in striking this first version (actually, it was a stipulation).
Yet it was a Pyrrhic victory for Kotzker: Fantalis later repeated the procedure, following the rules this time: got judge’s permission and filed a much better document given extra time and a never-ending flow of new information and ideas.
You can skim over other filings, but without reading the Second Answer and Counterclaim you cannot be fully engaged in the discussions. In addition, if you are a defendant in any other copyright shakedown lawsuit, this document is your Holy Book: it lists most of the basic defense ideas, and is written in English, not Legalese. Finally, if you are a casual web surfer, who stumbled upon this blog for the first time, you will find a near perfect explanation of the copyright trolling scam anatomy. While this site (as well as Rob Cashman’s and DieTrollDie’s ones) has a larger mass of relevant information, this information is dispersed over posts, pages and comments. The FAQ was designed to explain troll’s kitchen, but it is admittedly outdated. Given that, I cannot imagine a better “crash course about copyright trolling” than this document:
Unfortunately, because Fantalis is a pro se defendant, he is not allowed to file documents electronically, and therefore all his masterpieces are printed-mailed-scanned, i.e. they are not selectable/copy-pasteable/searchable. I may try to run some through OCR software: I feel a duty to preserve some of these documents for posterity (whatever posterity is)
Update: I replaced the embedded document with an OCR’d one, thanks to a good guy who emailed me offering his help.
On 11/02 Kotzker/Lipscomb filed an opposition to this document.
Trolls continue sabotaging discovery
During the phone conference that Judge Baylson had over the Bellwether trial in Pennsylvania, Keith Lipscomb (Kotzker’s “boss” and the extortion scheme mastermind) mentioned this lawsuit as one in a “very advanced stage.” In the post about that conference, I joked that Lipscomb must have meant an advanced stage of discovery dodging. Funny that at that time I did not know the facts described in the following paragraphs yet!
If you look at the barrage of motions, replies, and objections filed at the end of October/ beginning of November, you will understand the full extent of trolls’ despair: they do everything thinkable and unthinkable to avoid answering direct questions. No one is surprised: the truth may be too damning and is capable of not only torpedoing this particular case, but also sinking the entire USS Lipscomb.
In the previous post on this topic, I mentioned Fantalis’s 10/11 Motion to Compel Plaintiff to Produce Answers to Discovery. The hearing was set for 11/5 (this past Monday). A high-frequency sabotage ensued after that:
On 10/29 Kotzker attempted to delay the procedure and filed his Motion to Modify Schedule (was denied on 11/05).
On 11/02 Kotzker filed for an extension to file his Opposition to the Motion to Compel. Fantalis opposed). Nonetheless, Plainfiff’s opposition was granted on 11/05 during the hearing. I suggest reading the Fantalis’s reply: it called out Kotzker on his obvious sabotage. Fantalis arrived at a simple conclusion that everyone here knows already, he just put it nicely:
It has been Defendant’s position since the very beginning that Plaintiff has neither the desire nor the capability to litigate the case against the Defendant or any of the thousands of other defendants Plaintiff has sued around the country.
11/04 plaintiff’s Motion to Stay Discovery Pending Resolution of Plaintiff’s Motion to Dismiss the Second Amended Counterclaim was granted during the hearing (see the notes below).
On 11/5 Kotzker filed a Motion to Strike Affirmative Defenses. This was clearly a move to try to substantially limit discovery. As discovery may be taken on claims as well as defense, Malibu Media wants to limit Fantalis’s affirmative defense, and hence the discovery associated with it. A really desperate move, and of course Fantalis is expected to file an opposition.
Monday Hearing: good news overall
As I noted earlier, during this hearing, plaintiff’s Motion for an Extension to File his Opposition to Motion to Compel was granted (but read further to understand that it was not that important).
Another motion that the judge has granted was Kotzker’s Motion to Stay Discovery — pending resolution of Malibu’s Motion to Dismiss. It is not an extraordinary ruling, as there is a lot of case law that says that this is an acceptable arrangement. However, the judge only partially granted this motion, and then he went thought each request for discovery and told the plaintiff exactly what it had to produce or answer. That is why the meeting lasted for almost 4 hours.
At this moment you may start thinking that Kotzker had an upper hand, but do not be so quick: the real fun has just started. The following micro-events shaped the hearing, and many things went downhill for the trolls from here:
- The Judge got Kotzker to admit “on the record” that an IP address does not equal a human.
- Fantalis brought to the Court’s attention that Koztker had missed a ton of deadlines. In particular, Fantalis contested that some of the “handful” of documents turned over by Malibu Media should not have been marked confidential, and Kotzker has still failed to respond, even though the protective order in the case sets a hard deadline. The judge ordered Kotzker to respond by Wednesday or he would entertain a motion to dismiss the case for failure to prosecute. (This is an extreme remedy, especially when Kotzker is in Court for 4 hours and the judge still says he is not prosecuting the case — any attorney in his place would be sweating out gallons hearing that.) When the judge pressed Kotzker about missing so many deadlines, the troll said he would not take on any more cases.
- The judge ordered the fee agreement between IPP (a German “forensic” company that harvests IP addresses from Bittorent trackers using super-secret software) and Malibu to be turned over to Fantalis. He said if it is a contingency agreement, then there will be a problem. It is against the standards of professional conduct to share a contingency fee with anyone apart from the attorney or lawfirm. (This could get ugly.)
- The judge said that Kotzker’s and Lipscomb’s fee agreements with each other and Malibu Media were likely privileged, but the judge was suspicious enough that he ordered them sent to his personal chamber for review!!! This is huge. I do not remember the exact numbers, but anything past a 30% contingency is considered outside the norm, and anything approaching 40-50% is a big problem. If it is really a 9:1 contingency, it would not only be obviously unethical (and the judge would report it to the state bar), but it could actually be illegal.
- Fantalis noted that some of Malibu Media’s responses, signed and attested to by Malibu Media’s co-owner Colette Leah appeared to be false (who knows if she ever really saw them: according to the comment she once left on this forum, she is just a brainless puppet in Lipscomb’s hands). The judge indicated that if defendant could substantiate that the responses were false (which he can and is in the process of doing) then Colette Leah could be brought in on potential perjury charges. At that point, Malibu owners are going to be put under oath, and the proverbial aromatic substance will hit the fan!
- The Court directly told Jason Kotzker that if the jury found any of the “works” to be obscene, these “works” would not be subject to copyright protection. WOW. Marc Randazza must be saying some words at this moment: those words that usually cause 99% of normal people instinctively cover their ears.
- And the icing on the cake: Fantalis has offered up his computers to Koztker and the judge “Maness style.” Malibu Media failed to take Fantalis up on his offer (surprise!).
At the time of the writing of this post I was aware about Fantalis’s surreply calling out a trolls’ major fallacy: advocating joinder during the mass phase, but shying away from it when it comes to derivative individual lawsuits. I did not want to overburden this post and planned an update. Fortunately, one of the most active and articulate regulars wrote a nice analysis in the comments, which I converted to a post: