Attorney M. Keith Lipscomb tries to jump out of his skin attempting to distance himself from the media’s favorite scapegoat John Steele. Lipscomb has even managed to convince Judge Baylson to declare our troll “not a copyright troll,” the fact that raised many brows, even among legal scholars. One thing is to obtain a “he-is-not-a-duck” affidavit form a judge, another is to pass the duck test. No matter what was the botched Bellwether lawsuit’s judgment, a trail of douchbaggery that Lipscomb leaves behind him stinks so badly that even causal spectators have started to realize: Keith Lipscomb’s conduct is no better than Prenda’s.
I wrote about the Pelizzo case back in October: even at that time it was obvious that there were way too many pointers to the defendant’s innocence. I recommend reading this post, or, alternatively having a look at the “Background” section of the motion embedded above.
To recap, Lipscomb picked a very odd target to pursue: a religious 61-year old man who was not in the country during almost the entire period, when the alleged infringement was allegedly taking place. In addition, it quickly became clear that the evidence (provided by his ISP Hotwire) that links Mr. Pelizzo to file-sharing happened to be shaky (to put it mildly).
Long story short, Lipscomb finally essentially acknowledged Mr. Pelizzo’s innocence and dismissed the case with prejudice on 4/26/2013 (approved by Judge Seitz on 6/4/2013). So, everyone is happy less some nerves. Right? Some may assume that Lipscomb extended his sincere apologies and even offered some compensation for Mr. Pelizzo’s troubles (his jaded “clients” Brigham Field and Colette Pelissier undoubtedly could afford a face-saving gesture). Right?
Wrong: we are talking about the scum incapable of any empathy or dignity, despite his purported Christianity.
In fact, Lipscomb realized that he had been targeting a wrong man shortly after the shakedown lawsuit was commenced (see the previous post — how Lipscomb initially filed a response full of excuses). As time was passing by, more and more gaping holes in the evidence became visible:
On October 23, 2012, Plaintiff’s counsel sent the undersigned an email noting that “[o]ddly, the infringements are continuing on the same IP Address which was previously assigned to your client.” This acknowledged Defendant’s evidence that the infringing IP Address was not, at least as of September 10, 2012, assigned to Mr. Pelizzo’s unit. Plaintiff’s counsel did not — despite this “oddity” — offer to dismiss the action. He did, however, relay his intent to depose Hotwire to determine how Mr. Pelizzo had come to be associated with the infringing IP Address.
Hotwire’s corporate designee, Laurie M. Murphy, Esq. was finally deposed on March 12, 2013 (transcript). By this date, nearly five months had elapsed since Plaintiff’s concession that the infringing activities were continuing vis-à-vis an IP Address no longer associated with Mr. Pelizzo’s unit. Nevertheless, Plaintiff does not appear to have used this time to determine the identity of the actual infringer or otherwise substantively inquire about the information upon which his allegations relied.
[Hotwire's] Ms. Murphy, for example, testified:
- that “Hotwire cannot definitively identify a subscriber”;
- that the IP addresses allocated to Mr. Pelizzo’s 700+ unit condominium building are assigned to the “entire building” — not individual units — and kept “in a constant sort of mixing pod”;
- that IP addresses not used for 24 hours — such as if “someone goes on vacation” — “just go back into the mix”;
- that Hotwire’s search had been limited to identifying the subscriber associated with the infringing IP Address on February 6th, 20127 (and, therefore, twenty-nine (29) days after Mr. Pelizzo had already been out of the country and not using his internet connection);
- that the aforementioned search was conducted without supervision by a “technician” that is no longer employed by Hotwire;
- that Hotwire has no records or logs of this search and, therefore, cannot verify that the technician inputted the correct IP Address or hit dates;
- that Hotwire’s subscriber information is provided by the condominium building but that the accuracy of this information is not verified as “individual details are not that important”; and
- that, while internet ports assigned to individual units can be mislabeled, that Hotwire never made an effort to verify that Mr. Pelizzo’s internet port had been correctly labeled.
Isn’t the above information sufficient to apologize and resolve the conflict amicably? Sorry for insulting your intelligence, guys, by such a question.
Given the obviousness of the wrong accusation, Francisco Ferreiro emailed Lipscomb on March 21, 2013 — nine days after the deposition — with a request that Plaintiff (1) dismiss this action with prejudice; (2) file a statement publicly acknowledging that Mr. Pelizzo was incorrectly identified as an infringer of pornography; and (3) reimburse Mr. Pelizzo for the legal fees incurred as of that date.
Now finally comes the part that explains all my anger and disgust expressed above. Here is Lipscomb’s reply:
Your offer is rejected.
I will see you at trial.
…and later the same day (emphasis is mine):
I would like to depose Mr. Pelizzo during the first two weeks of April. Please provide me with deposition dates. If you do not, I will unilaterally set it. Also, I am going to make a physical inspection of the port at the applicable building. If you have blackout dates in the second two weeks of April, please advise. Finally, I am going to depose the IT manager at Hotwire. The 30(b)(6) deposition pointed to only one possible error in the identification process. Once I close that loop, our case will be rock solid extremely strong. As you may know, BitTorrent continues to distribute until a user tells affirmatively tells a BitTorrent Client to stop distributing the torrent file so your client being in-and-out of town during the applicable period of time does not undermine the assertion that he is the infringer. The list of infringements against your client is enormous. Respectfully, you should counsel him that when he loses, he will lose everything he owns and owe my clients hundreds of thousands of dollars. Mark these words, your client’s decision to reject a walk away will be the worst decision he will ever make.
Please send Francisco our offensive discovery by COB Monday.
On March 22, 2013, Plaintiff’s counsel made good on his threat to continue prosecuting this action against an innocent party by serving the defendant with frivolous Interrogatories and Requests for Production.