Defendant’s motion for protective order regarding his hard drive
This motion was filed on 7/2/14 by attorneys Derek W. Wilczynski and Lincoln G. Herweyer on behalf of the defendant who claims absolute innocence. While not opposing to his hard drive examination in principle, the defendant was justifiably concerned about possible fishing expedition to his sensitive data. The plaintiff (Keith Lipscomb / Paul Nicoletti) insists that the drive examination should be performed by its expert Patrick Paige, whose reputation was tainted by his sloppy (and maybe even deliberately biased) declaration in Malibu Media v. Kelley Tashiro (INSD 1:13-cv-00205). In addition, given the overall infamy of the shakedown artists, the defendant reasonably doesn’t trust that the forensic analysis will be performed honestly and that unrelated data found on the drive won’t be misused to press the defendant to settle:
From Defendant’s perspective, however, the procedure contemplated by Plaintiff is needlessly invasive and lacks adequate safeguards, among other problems. In truth, Defendant welcomes another opportunity to demonstrate that he did not engage in peer-to-peer file sharing of Plaintiff’s works, and fully expects that a forensic examination of his computer’s hard drive will bear witness to that fact.
Moreover, Defendant understandably distrusts the particular persons who want to subject his confidential information to such exacting scrutiny. Defendant does not have the resources to monitor Malibu or IPP (the German IT firm on whose work Plaintiff’s case is based) and hold them accountable should they violate the protective order contemplated by Plaintiff. Instead, Defendant would have to essentially trust them. Yet, pornographers with an industry-sized litigation practice of coercing settlements from blameless individuals do not instill the confidence necessary to such trust. Nor does a foreign IT company that may be a shell for a previously discredited firm instill such trust. While Plaintiff may be heard to shout its own bona fides, one must remember that Defendant knows that he did not infringe Plaintiff’s copyrights and, therefore, he knows that Plaintiff is the kind to sue innocent people and attempt (from his perspective) to extort money from them.
So, the defendant wants
[...] the moral equivalent of an in camera inspection of his computer’s hard drive, by using a licensed but neutral expert in computer forensics (paid for by Plaintiff) who can provide the information to both parties that is relevant to Plaintiff’s claims, but who will not otherwise divulge the contents of Defendant’s computer to Plaintiff or anyone else.
…and he wants a local expert, arguing that
[...] in Michigan those who engage in computer forensic investigations for a fee must be licensed, and doing so without a license is a felony punishable by up to four years in prison.
Order on this motion
Today Judge Victoria A. Roberts ruled on this motion, and while she ordered to hand out the mirror of the defendant’s hard drive to Malibu/Paige, she agreed with the other safeguards that the defendant asked for (emphasis is mine):
Counsel for Malibu Media is to supply defense counsel with copies of protective orders entered in similar cases pending in this district, to be used as models in fashioning this protective order. As basic parameters, Defendant is to provide a mirror image of the hard drive at issue to Malibu Media, at Malibu’s expense, as soon as the terms of a protective order have been agreed upon. The protective order will specify the material that Malibu’s forensic expert is looking for; anything else on the hard drive is off limits for discovery purposes.
If the forensic examination does not reveal evidence of the copyright infringement alleged in the complaint, and if there is no evidence that infringing files have been deleted, Malibu Media will dismiss its claims against the Defendant.
Like the defendant, I do not trust anyone associated with Lipscomb’s division of Guardaley. Therefore I’m not confident that the crooks won’t find a way to maintain the lawsuit, ramping up the legal costs and increasing the pressure to settle, even if no evidence of infringement is found.
Nonetheless, this is a welcome development and good news amid the ongoing legal epidemic of copyright trolling. At least this defendant will avoid embarrassing questions about his purported porn habits, and his Internet bandwidth usage won’t be a subject to Orwellian insinuations.