Guardaley | X-Art
Defendant: Malibu Media’s expert Patrick Paige’s declaration is incompetent
Brief history of the case
Lipscomb and his Midwestern pawn Paul Nicoletti filed the Malibu Media, LLC v. John Doe (INSD 1:13-cv-00205) lawsuit on 2/5/2013. The complaint was accompanied by an infamous and scandalous “Exhibit C,” a disgusting practice, for which the trolls were sanctioned in Wisconsin twice. According to Lipscomb, such exhibit (now striken from the record) was meant to demonstrate that the Doe is a habitual Bittorent user, who infringes upon a lot of other copyrighted stuff: music, software, other pornography. In reality, this “extended surveillance” proves nothing. As a Florida judge recently ruled in another Lipscomb’s/XArt’s case,
[…] Even if this IP address is located within a residence, the geolocation software cannot identify who has access to that residence’s computer and who would actually be using it to infringe Plaintiff’s copyright. The Court finds that Plaintiff has not established good cause for the Court to reasonably rely on Plaintiff’s usage of geolocation to establish the identity of the Defendant.
The only goal of this practice is to intimidate a defendant and coerce a settlement notwithstanding that the Doe may be completely innocent.
As in almost all the trolling cases, the discovery was granted, and the shakedown ensued. It is worth noting that on 2/15 Judge Dinsmore, to whom this case had been reassigned, expressed a concern regarding trolls’ practices:
The Court has become aware of several court opinions from across the country that have raised concerns regarding potentially inappropriate procedures being utilized by plaintiffs in cases similar to the instant case to extract settlements from putative defendants without any intention by the Plaintiff of ever actually litigating the case on its merits […].
One unsettling fact is the short time between the order granting ex parte discovery (subpoena to Tashiro’s ISP) and the first indication that Nicoletti learned Tashiro’s identity: only nine days. Most likely, Tashiro, having learned about the subpoena from her ISP, called the troll (a very bad idea: under no circumstances should one talk to shakedown artists without an attorney).
The defendant was named in an amended complaint on 4/8/2013, and in May she hired a Peoria attorney Jonathan Phillips. A very good choice.
Many interesting events took place in this case (see the docket), but, in order not to abuse reader’s patience, I’ll fast forward to the main subject of today’s post.
Full Prenda and accusations in spoliation of evidence
Patrick PaigeOn 2/13/2014 Nicoletti filed an unopposed (this one is a charade to me) motion to deposit not only Tashiro’s husband, but four neighbors “[to] eliminate[e] all doubt that the infringement took place outside of Defendant’s home.” I can’t help drawing bold parallels with Prenda’s conduct.
A day earlier Nicoletti filed a motion for sanctions against the defendant, accusing her of spoliation of evidence. This accusation was based on Patrick Paige’s (Lipscomb’s expert) findings:
See Declaration of Patrick Paige (“Paige”), Exhibit A […] His examination revealed evidence of extensive BitTorrent use. Id. Defendant deleted numerous files and folders associated with BitTorrent use. The deletions occurred on December 22, 2013 at approximately 10:00 pm. That was the night before the hard drives were turned over to Quantum Discovery for imaging. Id. Mr. Paige recovered seventy-three (73) deleted BitTorrent files. Many of them are associated with adult movies. Id. BitTorrent clients, that enable the BitTorrent protocol to work, were also deleted. Id. One hundred seven (107) files and folders were also deleted on December 22, 2013 at 10:00 pm. Most of these were parent folders containing thousands of files. According to Mr. Paige, copies of Malibu Media’s movies could have been in these folders. Undersigned will take it a step further: the files were likely in these folders and that is likely why they were deleted.
(By the way, Nicoletti conveniently “forgot” to file the Exhibit A.)
As an IT professional, I immediately smelled bullshit. Assuming that Tashiro used Windows, her file system was NTFS. File descriptors in NTFS are stored in a flat table, and deleting a folder prompts the system to go over these entries and mark all the files from that folder as deleted, one by one — just like it would be the case if each file was deleted separately. Consequently, whether a file is deleted directly, or as a part of a folder — does not matter: these files are equal from any recovery program’s point of view.
Also, phrases like “could have been” are unacceptable when making such serious accusations. This phrase alone should have raised a red flag: when there is no lint of evidence that Plaintiff’s files had ever been on the dive, all this “expertise” is merely a pounding on the table.
Fortunately, defense did not miss these points either.
Moreover, the defendant hired Delvan Neville (no introduction necessary) to conduct her own forensic analysis.
The implication of the findings was unambiguous: Lipscomb, Nicoletti and Patrick Paige are full of shit. Phillips filed a powerful opposition on 3/28/2014, thoroughly explaining why:
Malibu wholly relies upon an incompetent declaration based on a less than full analysis of Tashiro’s turned-over hard drives. Incredibly, Malibu has filed its Motion without a single iota of evidence that Kelley Tashiro that knew of, or did, anything.
[…]
In a desperate attempt to salvage a case it has no evidence to support, Malibu has failed to provide any reason to believe that Tashiro has committed perjury. Further, Mr. Paige’s affidavit is not only without support, it is incontrovertibly based upon a half-done analysis, that when fully performed, shows all files are still present, no attempts at “wiping” were made, and no evidence was actually spoliated.
And here is Exhibit A — Declaration of Delvan Neville:
Other exhibits:
- Exhibit B — Email from Malibu Counsel.
- Exhibit C — Excerpts from Kelley Tashiro Deposition Transcript.
Conclusion
We know only a few Malibu Media cases where innocent defendants fought nail and tooth for their good names. But how many silently settled because of a reasonable fear of inevitable reputational damages? Lipscomb and his “plaintiff” (who thinks that the law is something that is served a la carte) assaulted numerous families just because they could, all based on information provided by an unlicensed, improperly compensated foreign IP harvester (IPP International) of a questionable expertise¹, and an “expert” (Patrick Paige), who would likely benefit from reading “Computers for Dummies.”
Although I respect defendants’ desire to regain privacy that trolls have rudely violated, I really hope that a couple of these cases will find their way to real jury trials, not something like the Bellwether farce — a prospect Lipscomb and his clique are terrified of.
¹ I’m aware of one Malibu Media case where their expert found nothing on the defendant’s drive, and the settlement offer went from $7,500 to a walk-away, which the defendant accepted. Too much for the “impeccable technology”!.
Fight © Trolls 
Great post about a top notch lawerly opposition grounded upon Delvan’s expert forensic analysis.
Reading Devlan’s Declaration which sets forth a deep analysis of the Doe’s hard drive you cannot help but begin to harbor dark suspicions as to why Paige’s was so shallow and cursory. Nicoletti’s Reply to this should be interesting to say the least.
I don’t necessarily think that Paige is a bad guy. As for his professionalism, while I was sarcastic, I don’t think he is a rookie either (although there is a big difference between a specialist “trained” to use certain software and a real geek). Paige is probably in an uncomfortable situation: I suspect that Lipscomb pays a lot, so Paige probably wanted to both be truthful and to satisfy his client. Such tactic often backfires, and I believe it is exactly what we are seeing here.
Falsely accusing a person of doing something illegal on pure speculations is very bad. Especially for expert testimony in Federal Court and when the data could easily be recovered by a lay person. There is no excuse for this incompetence, An expert is to be objective and not be persuaded by who is paying his bill.
Interesting… Judge Dinsmore on Friday denied Nicoletti’s motions 1) to postpone the settlement conference set to 4/3/2014; 2) for Plaintiff to appear telephonically.
According to the language, it is not about Nicoletti, but someone from XArt. Seems that Colette or Brigham (or some other corporate representative with full settlement authority — Ohai, Mark Lutz!) are set to travel to Indianapolis.
And once you make leaps in what you claim, you’re no longer an expert.
Experts speak about facts and can support their conclusions.
Perhaps this speaks to the level their other “experts” work on.
Don’t get me wrong, Nicoletti’s had not done even a little real research to identify an accurate person before they started this, but this isn’t the case I would place my wages on to prove that IPP can’t even find the right house.
I think their technology has a lot of problems, but don’t think this is the case where we wind up getting proof that it is totally worthless.
On another note, it is always refreshing to read one of Delvan’s declarations. This is how I did it. This is why I did it that way. This is what I found. This is what it means.
WOW! What a load of crap from Troll Nicoletti and Patrick Paige. To make the bold claim that Mrs. Tashiro perjured herself by stating she didn’t install or use BT in any way is ridiculous. Malibu Media knows there are at least one other person in the residence. The same goes for the spoliation claim. Yes, folders/files were deleted the night before imaging (Not something I would recommend doing), but that doesn’t mean she did it. It requires a deeper investigation before making an idiot claim.
What is even more troubling is the fact that Plaintiff’s forensic consultant is obviously biased for his paying customer – Malibu Media/Troll Lipscomb. It is disturbing the Mr. Paige would put his signature to a document that states:
“28. Malibu Media, LLC’s copyrighted content could have been deleted from the drive during the Defendant’s mass erasure the night before the computer devices were turned over to Quantum Discovery.”
This is something that could be stated by Plaintiff’s attorney or even asked of Mr. Paige while on the stand, but to make such a statement in a forensic report (even in this substandard summary of the main report) calls into serious question how Mr. Paige’s services can be affected by a well-paying client. Based on all the evidence provided in this report, the following is just as correct and better written:
“Malibu Media, LLC’s copyrighted content might not have been deleted from the drive during the deletion of multiple files the night before the computer devices were turned over to Quantum Discovery.”
Also note how I changed “Defendant’s mass eraser” to “the deletion of multiple files.” There is NO WAY Mr. Paige can say that Mrs. Tashiro deleted those files based off his analysis of the hard drive images. STUPID STUPID STUPID!!! He wasn’t there! That type of inference is for the attorneys to make. Also, the use of the term “erasure” by a forensic consultant to describe a simple file/folder deletion is ridiculous and makes it look like they are trying too hard to sell their point.
The term “eraser” is used to describe the process of which a file/folder/unallocated space on the hard drive is over intentionally over-written by other data. Mr. Paige makes no mention of an “eraser” program or even that the drive was defragged after the deletions.
As Mr. Neville points out in his examination, files/folders were deleted. The deleted files WERE still on the hard drive and were extracted by Mr. Neville. I’m sure Mr. Paige could and likely did the same. Funny that there was NO mention of Malibu Media movies OR torrent files recovered from these deletions. Mr. Paige – IMO you are either incompetent or a liar. Either way getting cross examined by Attorney Phillips (via Mr. Neville) isn’t going to help Malibu’s case one bit.
As Troll Nicoletti didn’t bother to file the main report of Mr. Paige (“Report”/Exhibit A to Mr. Paige’s Declaration), we (AND the court) not privy to the full details of it – at least via what is on the docket. The main forensic “Report” may have more details, but it does not excuse the summary report. I still cannot believe how overt Mr. Paige’s bias is for this client.
DTD 🙂
One of the things you notice in Devlan’s deceleration is that it was filled what software was used and version of it he used, the different ways he looked for supposed infringing files, and the results of those examinations.
Malibu’s examiner never included what tools of software they used for their results, version of said software or what and how they searched for allegedly infringing files and the results of their examination.
All you read is “maybe” or “could” have had the alleged infringing files on it. Wow! I think a 8 yr old could come up with the coulda/mighta defense better.
Even in Nicoletti’s filing with the court to have him and one of X-art’s reps appear by phone, Nicoletti himself put in this gem:
” 7. In light of this evidence, Plaintiff is very confident that it could succeed at trial. ”
Gee Paul… You don’t exactly instill confidence in your case when you say “could” succeed at trial” . To be honest I doubt like hell your going to win this one, I smell a settlement with a no disclosure coming from the malibu side.
After all is said and done here I don’t think Malibu is going to fare well here, Devlan’s declaration is fairly strong and is a lot better than Malibu’s could /mighta theory, it will be interesting to see how Malibu proceeds with this one as Devlan’s declaration is going to be a little bit of an obstacle to overcome.
If Malibu’s loses this case, I see a lot of lawyers in Malibu cases letting Judges know of the going’s on in the S.Fla cases with the Judge Unagro’s tossing them and then using this case and how Malibu provided no details to back up the conclusions they came to and how they got their results.
I believe this Judge senses the real racket going on here and he is going to come down on the trolls in this one. This Judge wasn’t going to let Malibu and their client slide on their appearance and the recent S.Fla decision is going to start hurting Malibu’s extortion -er- I mean litigation strategy in their copyright cases.
Good thing they have those IP lawsuits in the pipe, cause I see the money from these coming to a halt.
This case is over a year old and the Plaintiff is still on a wild goose chase with no evidence of who did what. The judge should put an end to this charade.
Perhaps the judge is giving the Plaintiff just enough rope to tie a hangman’s noose around their own necks.
Wow thats a rather drastic beat down there……….
Devlan just pointed out MM’s expert is a freaking idiot in the nicest possible way
I’m a bittorrent defense lawyer here. Formerly a torrent plaintiff’s lawyer. I have to set the record straight here. I get a lot of calls for torrent defense cases based on the stuff I’ve written on Philly Law Blog. All of which I wrote because it was on my mind, not to build a torrent practice. We don’t even advertise for torrent / subpoena defense on our website. If people call I try and help them out…
Every single case we have settled has involved someone who was guilty, or someone in their household was. Every. Single. One. And I get a lot of calls, too. I’ve been doing these cases since 2012 and I’ve never gotten someone who is “completely innocent.” In the cases where we could show that the subscriber of the account was innocent, Malibu dropped the case and then pursued the actual infringer.
“But how many silently settled because of a reasonable fear of inevitable reputational damages?”
I have never ever represented a defendant who settled for fear of reputational damages. Every time the accused is either caught red handed, or it has been “My client doesn’t have bittorrent on his system, and doesn’t watch porn, but his roommate does.” I hate to tell you this from the perspective of a defense attorney, but the evidence is good. It just is. People don’t like that, but it’s the truth. I could not ethically allow a person to settle on bad evidence – I would defend them on a contingent fee basis. It’s just never happened. An attorney who allows an innocent client to settle should be disbarred.
Having reviewed a ton of torrent cases, at this juncture my role is to help guilty people come to terms with the fact that the Copyright Act is harsh, Malibu has good evidence, and if they took it to court the defendant would be in a world of hurt.
But… please, please, please! Send me someone who is completely innocent. I will defend them at my cost. I will pick up all the fees and costs associated with the litigation. And then we will sue the crap out of Malibu for malicious prosecution / Dragonetti. We’ll all make a lot of money! I have made this offer on several occasions, but no one has ever taken me up on it.
If you think the Copyright Act should be less harsh I get that. I do. But at the same time, let’s not forget that people are pirating content at an alarming rate, and our laws allow a redress for that. People are pirating the hell out of Malibu’s intellectual property, and they are enforcing their legal rights.
Call it whatever you like but people are stealing their shit and getting caught.
If you did the crime, you pay the time. Sorry. Wish I had better news for you, but I don’t. If you don’t like that, ask Congress to amend the Copyright Act, or stop pirating stuff.
“I hate to tell you this from the perspective of a defense attorney, but the evidence is good. It just is.”
I hate to tell you this from the perspective of a bittorrent expert, but the evidence is poor. It just is.
The difference is we look at it from different sides. You’re focused on what is legally convincing to a judge. I’m focused on the raw data of the evidence. There’s a very good reason why no bittorrent evidence system has ever undergone a rigorous outside, independent examination. Even the Government backed, big ISP-industry supported 6-strikes system couldn’t manage it and instead went for an inside job.
So, want to tell me again how this evidence is ‘good’?
BTW, “Call it whatever you like but people are stealing their shit and getting caught.” There’s a DAMNED good reference now for NOT hiring you to defend. As a lawyer, and one that supposedly knows this area of law, you should know FAR better than to make that kind of 3rd grader (or lobbyist) statement.
Since you clearly don’t know the difference between ‘stealing’ and ‘copyright infringement’, I wonder if that means your clients are open to claims of inadequate representation. I certainly know the difference, but then again, I started off in this field as a Copyright Infringement Investigator for a record company, some 15 years ago, not an area I picked up because of some blog posts. Maybe that’s the difference?
May I present the sole pirate responsible for every Malibu and Voltage case, DRARBG. http://thepiratebay.se/user/Drarbg/
We will never see him in a court, or any members of the warez crew working for Guardalay.
Also, we will never hear anything about beautyisdivine.com, ever.
Fortunately suing half a million people has finally put an end to online piracy.
http://www.forbes.com/sites/insertcoin/2014/04/15/game-of-thrones-sets-piracy-world-record-but-does-hbo-care/
The industry is saved.
Want to make a lot of money suing Lipscomb and his gang? What if I were to tell you that during 2011-2012 they were shaking down Does for 2 porn videos possessing no copyright in plaintiff’s name and, in fact, produced by another porn content producer who held the copyrights? Those would be the K-Beech lawsuits and a shitload of them were filed in EDPA.
Do you still seriously think that Malibu/XArt are the ones who hired attorneys to “enforce their legal rights”? You must be under a serious spell.
What is the cut of the ransom proceeds XArt is entitled to? You could figure it out via discovery, but you didn’t. Other lawyers will find that answer earlier or later — the prospect that terrifies the crooks. Those attorneys are fighting for their clients tooth and nail, and you know what? I wouldn’t bet my life on the fact that these defendants are innocent. It is beyond the point.
Lipscomb is a parasite and he belongs to jail. Breaking the law is bad, but parasitizing on lawbreaking is tenfold worse — whether it is a pimp, a racketeer or a copyright troll.
“Every single case we have settled has involved someone who was guilty, or someone in their household was. Every. Single. One.” I would not hire you for that same reason. You would go on a blog and state that everyone you represented is guilty. I think that whomever you represented deserves the right to privacy. I never liked you and never will. Once a troll, always a troll! Troll!
What gets me 2 years later is how Patrick can possibly “personally” examine all the hard drives of the hundreds of defendants, write reports, give depositions. Lipscomb’s crew are still asking for continuances and time for Paige to examine and prepare experts reports, which he never seems to produce in a timely manner, if at all. Is this just another cog in their wheel where someone gets paid “something” for really doing little or nothing? I can’t imagine them paying 3-4k to Paige to examine each defendant’s hard drive who doesn’t settle. It would seem like Lipscomb’s clients might be his only business. But this is only my opinion.
Nice post thanks for ssharing