There are many good responses to copyright trolls’ activities these days. This opposition to Malibu Media’s attempt to game the courts by filing a last-minute motion for enlargement of time to complete discovery
caught my attention for the reasons described below, especially the last one — the one that gave the title to this post.
The motion was filed on 8/4/2014 in Malibu Media v. Eric Siegel (PAED 13-cv-06252) by a New Jersey attorney Darth Newman.
Protective order gamesmanship
First, Mr. Newman describes a painfully familiar Lipscomb’s modus operandi: trolls drag their feet till the last moment (often declining defendant’s offers to examine his/her hardware), and then suddenly request an extension. Rinse, repeat.
This case wasn’t different:
The Court’s April 25, 2014 scheduling Order set forth a bifurcated discovery plan whereby Malibu was obligated to complete certain discovery, primarily focused on Mr. Siegel and his computer hard drives, before moving on to the expansive third party discovery initially sought by Malibu. Malibu has failed to timely pursue even this first category of discovery.
In the several months since the initial conference, Malibu has only pursued document requests and interrogatories, to which Mr. Siegel provided timely responses.
Then, what supposed to be simple protective order negotiations, turned out to be a delay tactic: Malibu kept insisting on unacceptable terms:
On July 14, Mr. Fiore finally sent an alternative protective order but this draft was both limited to the examination of Mr. Siegel’s computers and purported to expand the materials Mr. Siegel had agreed to produce to include his tenant’s personal property. The July 14 draft failed entirely to protect Mr. Siegel’s confidential and personal information.
We witnessed many times in the past: the crooks want to know everything about the defendant (including his/her purported porn habits), but when it comes to production of plaintiff’s relevant information, all we see is desperate attempts to obstruct the due process.
Not only has Malibu been slow with respect to making discovery requests, it has also been sluggish to respond fully to Mr. Siegel’s discovery requests. Mr. Siegel propounded requests for documents and, although it timely responded, Malibu interposed a number of frivolous objections and seemingly arbitrary limitations on the materials it would agree to produce.
Malibu offered to produce some documents and counsel have traded correspondence about Malibu’s objections and limitations, but, to date, the only documents Malibu has actually produced are copies of copyright registrations which are publicly available online.
Porn troll Jessica Fernandez
A side note: who is in charge?
If you look into the Exibit A (email correspondence between Malibu’s local Chis Fiore and Darth Newman), you will find yet another proof that Fiore is simply a pawn: he merely forwards documents to and from the Troll Center (Lipscomb’s associate Jessica Fernandez curated this litigation):
Where is the evidence?
The apotheoses of plaintiff’s thuggery, and the fact that prompted this post, was the admission that the troll don’t even have the most critical information handy:
Malibu agreed to produce a limited portion of the electronic materials it intends to rely on to prove its case but has indicated that doing so will take an additional four weeks. Did Malibu not have this information when it filed suit?
Read it again and try to believe your eyes: these charlatans file lawsuits en masse indiscriminately and don’t even possess the information that forms the basis of their cases:
In particular, Malibu agreed to produce a subset of the data it claims shows Malibu’s investigator’s alleged connection(s) to Mr. Siegel’s IP address and the data allegedly downloaded from Mr. Siegel. This data forms the basis of Malibu’s case and Mr. Siegel and his expert(s) must have a fair opportunity to analyze all of it.
In my opinion, this is yet another visible sign of a gross abuse; it is very frustrating that courts around the country continue to swallow trolls’ bluff so eagerly.
The reason I use the word bluff is in part premised on recent events in a case involving another Guardaley-driven lawsuit, Elf-Man v. Lamberson (WAED 13-cv-00395). It appears that the trolls in that case simply don’t have any incriminating data beyond a TCP/IP handshake and transmission of a part of a movie that is shorter than an average wink. It is not a big stretch to suggest that the same game is being played here. Moreover, no one ever saw any Guardaley’s evidence: all we saw was a smokescreen of “PCAPs,” “WORM tapes” and “German government issued timestamps.”
There is simply no valid reason why producing the most essential evidence can take an entire month. Not only is the king naked, he doesn’t even wear sunscreen to withstand the sunlight of even a casual scrutiny.