I’m looking at the 8/28/2015 motion to show cause
why a pro se
defendant in Malibu Media v. Greg Weaver
) shouldn’t be held in contempt for violating Judge Thomas McCouns’ 7/23/2015 order
directing the defendant to supply his hard drive for forensic examination. (The exhibit
— email correspondence — is interesting too: it features a new name — Dwayne Denny
, a forensic specialist from Tampa.)
While I don’t condone violations of judges’ orders, this particular situation is not as simple as it seems at the first glance.
In order to protect people’s privacy, Eleventh Circuit has established case law aimed at curbing overboard, unrestricted discovery. In Malibu Media v. Roldan (FLMD 13-cv-03007), the very same judge granted the defendant’s motion for protective order and didn’t allow the plaintiff to access potentially sensitive defendant’s information:
[…] neither Federal Rule of Civil Procedure 34 nor governing Eleventh Circuit authority permit unrestricted access to a party’s database compilations and/or computer hard drives.
It will soon be a year since Malibu Media/X-Art filed a new lawsuit in Florida. There is more than one reason for what looks like trolls’ exodus from the Sunshine State. Clearly, a parasitic law firm Lipscomb, Eisenberg and Baker finds less and less love in its home state, and cautious Lipscomb apparently doesn’t want to piss off more judges. Yet, in my opinion, one of the biggest reasons of the said exodus is the above-mentioned state’s attitude towards unhindered fishing expeditions.
Note that such fishing expeditions are the only way for the troll to continue plundering the citizenry. As it becomes clearer and clearer, the king is naked: the Germans who de-facto steer US trolling operations simply do not possess any solid evidence of infringement. All they have is a single Bittorent transaction that corresponds to a wink-length piece of a film. No jury will find this to be sufficient to establish liability, and even conservative, somewhat pro-troll judges are skeptical.
That’s why the troll avoids jury trial at all costs.
Heads I win, tails you lose
Porn troll Jessica Fernandez
So, here is the dirty trick Keith Lipscomb relies upon to keep its money-making extortion machine going. First, the troll talks a defendant into producing his or her hard drives “for inspection.” If any traces of X-Art’s obscenities are found, the troll wins — it is hard to argue against such confirmation.
Conversely, what happens if no traces of porn in question are detected? A defendant loses anyway: Lipscomb will argue that any indication that any file was deleted (which is inevitable in the course of a normal computer use), even if it is recoverable, is perjury and spoliation. More pressure — more innocent people settle. This line of attack is pursued even if Lipscomb’s disgraced expert has to balance on the verge of perjury and contempt. Take Malibu Media v. Tashiro (INSD 13-cv-00205) for example: Paige falsely declared that deleting a folder in NTFS makes all the files in that folder non-recoverable. In another case, Paige outright violated the judge’s order and engaged in a fishing expedition hoping to find anything that can be leveraged to pressure the defendant into settlement; Paige found clearly inadmissible (and time-barred) evidence of alleged third party infringements and tried to use it against the defendant. The defendant fought back, and the troll ran away. In Malibu Media v. Raleigh (MIWD 13-cv-00360), Paige found the leaked Stratfor email database on the defendant’s hard drive, and, following Sony attorneys’ questionable quest to suppress the infamous leak, Lipscomb dishonestly claimed that it was illegal to obtain publicly available sensitive information: it is not by any stretch.
The list can go on and on, but the filthy pattern is obvious.
It is not unreasonable to assume that the majority of innocents who agree to open their drives for inspection are pretty sure that they would be cleared and their cases dismissed. They can’t be more wrong. The troll is here to part the weak from their money, not to seek justice.
Pitfalls of going pro se
So, getting back to our case… While yes, Judge McMacoun did order the defendant to produce his drive, the judge did it amid a lack of defendant’s resistance: we don’t see any motion for protective order opposing Lipscomb’s fishing attempt. Given the above-mentioned order in Roldan, I’m almost 100% sure that if the defendant fought back, he would have been able to secure a similar ruling and prevent Lipscomb from ransacking the defendant’s hard drive.
Neither do we see the defendant’s symmetric attempts to get information from the plaintiff. And XArt/Lipscomb has a lot to hide. Just look how Lipscomb stonewalls discovery in a similar ongoing FLSD case.
For example, in order to invoke the unclean hands defense, the defendant has the right to ask why X-Art owners filmed flicks such as “Get Wild At Home” or “A Hot Number” at their Marisol Malibu mansion in violation of the Ventura county’s statute, which provides for criminal penalties.
Discovery is supposed to be a two-way street, and the inequality of arms in this case is painful.
Granted, the defendant here seems to be educated and intelligent: his Answer to the complaint is well-researched and well-written (I especially liked the part about statutory damages as a proxy for actual ones — IMO, an undervalued and underused argument), yet Lipscomb is a sophisticated adversary, and a professional is needed to effectively counter the troll’s assault.
The defendant in this case hired the very capable Cynthia Conlin to protect his privacy. I don’t believe it’s a coincidence and happy that the publication of this story helped: things like this keep me going.
Although it may be technically too late, Conlin now tries to undo the damage the sleazeballs already done to an unrepresented layperson:
Having litigated virtually identical cases in this and other districts, Malibu Media’s attorneys know all too well that, within the Eleventh Circuit and in this Court, requests to image hard drives are not allowed.
It is true that a protective order must generally be filed prior to the expiration of the discovery period. However, the Court has discretion, and, when good cause is found, the Court can issue an order protecting a party despite a missed deadline. In particular, lenience is shown toward pro-se litigants.