I talked to some defense attorneys, and many expressed concerns regarding Malibu Media stonewalling reasonable discovery efforts. According to those attorneys’ experience, the extent of resistance is uncommon given the nature of the requested documents.
The only plausible explanation of this unusual stubbornness is the following: Lipscomb’s shakedown enterprise is built upon lies, and calling those lies out constitutes existential threat to the extortion racket.
First, Philips describes his futile effort to contact plaintiff’s attorney, a Lipscomb’s local in Illinois, Mary K. Schulz in order to address inadequate responses to his earlier discovery requests:
Lead counsel for Doe, Jonathan LA Phillips, has repeatedly attempted, in good-faith, to reach opposing counsel via telephone for a discussion to resolve the current dispute. Doe framed the issue in a written letter, and then repeatedly attempted to reach opposing counsel for personal consultation regarding the same. To date, Doe has received no response of any kind despite Attorney Schulz, in the meantime, issuing discovery in this case and filing at least six new cases for Malibu.
As a matter of fact, Schulz filed 21 case, not 6, on January 7. Schulz’s behavior exhibits not only chronic lack of ethics, but utter unprofessionalism. Add two recent sanctions imposed against this attorney, and it will be clear that she is a “great” litigator to hire.
Also, read Phillips’s letter to Schulz, where he calls out contradictions in Plaintiff’s answers to interrogatories (remember Mark Twain’s “If you tell the truth, you don’t have to remember anything”?):
What truths do trolls want to hide?
This motion addresses two major pieces of information that Lipscomb doesn’t want to share. There are many smaller issues, but these two are critical.
1. IPP International: plaintiff’s “expert”
Malibu repeatedly refuses to turn over information regarding IPP International UG’s investigation of Doe, and “other peer infringers,” due to burden and confidentiality concerns.
The bullshit justifications behind these refusals are not surprising. The actual reason is simple: trolls are scared to uncover the methodology employed by amateur foreign “investigators”: IPP is in fact an alter-ego of infamous German troll Guardeley, and its methods had been found flawed by a Berlin court. The software they use is an open-source Shareaza, hastily modified by a script kiddie. In addition, there are more and more suspicions that IPP actually creates honeypots by seeding the movies in question.
Being open and upfront regarding the methods is a prerogative of a professional and honest investigator. Just compare the artificial opaqueness of IPP to openness of Delvan Neville’s affidavit in a Prenda case.
2. Payment agreements
It is not a secret that any copyright trolling enterprise is run by “forensic experts” and lawyers. Plaintiffs are at the bottom of the food chain. Indeed, a popular radio host Adam Curry claims that X-Art’s owner Brigham Field admitted that he receives only 10% cut of the extortion proceeds. Yet this fact is not supported by public documents yet. This is why it is imperative to beat Lipscomb’s resistance and uncover the financial dirty laundry.
Answering to the questions about how IPP International is being paid, the plaintiff replied:
Pursuant to an oral contingency fee agreement, IPP International UG is entitled to a small portion of the proceeds from the resolution of this case in consideration for the services it provided.
Are you kidding me? A lawyer engaged in an “oral contingency fee agreement” with a critical party of a multi-million shakedown business? This assertion is an insult to the intelligence of the defendant, the lawyer community and the judge. Hence, Phillips argues:
IPP International UG is a “fact witness” who is being paid pursuant to an “oral contingency fee agreement.” Exh. E, p. 2, Resp. 1. No reason is provided why IPP’s compensation information is confidential. In fact, to allow an expert witness’s fees to not be released would deprive the jury of the ability to judge credibility. Further, Malibu has not provided any proposed protective order, even if it were protectable. With no reason provided, Malibu has refused to disclose the percentage, or amount of proceeds, it will receive from this case.
Another financial-related issue is the amount of settlements collected for a particular copyrighted work. No matter how draconian statutory fees are, they cannot pile up indefinitely, and a rights holder can only collect one per movie. Not surprisingly, Lipscomb fights tooth and nail in order to conceal the amount of money he stole from the population as it may prove the suspicion that he is milking the same cheap porno flicks over and over again.
I hope that a bogus confidentiality concern won’t fly with the judge, as
With regards to confidentiality of its proceeds from cases involving the same peer infringers as disclosed in its Rule 26(a) disclosures, Malibu objects, stating, “Each of the settlement agreements contains a confidentiality clause which prohibits Plaintiff from disclosing the doe defendant’s name and the terms of the Agreement.” Exh. F, p. 3, Resp. 4. Malibu complains that disclosure would “spawn an avalanche of irrelevant litigation.” Id. Doe’s defense against a $3.6 million dollar suit simply cannot be handicapped by agreements that Malibu made with third-parties. Further, Malibu’s settlement agreements are unenforceable under Seventh Circuit law and contrary to public policy. Union Oil Company of Cal., 220 F.3d at 567 (“Calling a settlement confidential does not make it a trade secret, any more than calling an executive’s salary confidential would require a judge to close proceedings if a dispute erupted about payment…”). If there truly needs to be an avalanche of litigation, Malibu is simply having to lie in the bed it has made.
- Exhibit A: Letter explaining position on each objection sent to Attorney Schulz by email. Letter informed Attorney Schulz when to expect call.
- Exhibit B: Email follow up to telephone call to Attorney Schulz. Set a new time for call and asked for notice if the time was not convenient.
- Exhibit C: Email follow-ups to telephone call to Attorney Schulz. Set new time for call and asked for notice if the time was not convenient. Email referenced severe weather and offered one additional call. Second email noted that Attorney Schulz was able to serve discovery, but would not take discovery dispute calls.
- Exhibit D: Email follow up to Attorney Schulz discussing no voicemail pickup, and inviting a call back.
- Exhibit E: Plaintiff’s Responses to Defendant’s First Set of Interrogatories.
- Exhibit F: Plaintiff’s Responses to Defendant’s First Set of Requests to Produce.
- Exhibit G: Plaintiff’s Fed. R. Civ. P. 26(a) Disclosures.
- Exhibit H: Plaintiff’s Response to Defendant’s Firt (sic) Set of Request for Admissions.
More efforts are underway
While I was concentrating on one particular motion to compel, it is not the only effort to force Lipscomb/XArt/IPP to reveal their shady dealings. In INSD (Malibu Media v. Harrison — DieTrollDie covered this case in detail), Gabriel Quearry filed a similar motion (and a supporting brief) as a result of Lipscomb’s/Nicoletti’s attempts to dodge the discovery. Interrogatory and discovery questions here are slightly different from those in Phillips’s motion, which makes me happy that many legal minds work independently to topple the troll.
I believe I saw more efforts of this kind, and I will update this post once I find the documents.
It is quite clear to me that earlier or later Lipscomb will fail under the weight of his own hubris. Avoiding a disaster in the Fantalis case and acquiring a false sense of invincibility from the mock Bellwether trial led Lipscomb to believe that he can always outfox both the system and all the other attorneys. Or, at the very least, he can buy his way out.
While the latter may be true, and I won’t blame a Doe who accepts a sizeable chunk of money to put all the dirt behind him, the former is an illusion: things have changed, and now there are many intellectually and ethically superior attorneys who genuinely want to exterminate the vermin that caused the legal plague of copyright trolling.
Initially hearing was set to 1/15/2014, but for some reason was continued to 1/22/2014.
On 1/22/2014 Judge Brown granted defendant’s motion to compel, which is a very welcomed news. Congratulations to Jonathan Phillips!