Guardaley | Voltage
Elf Man v. Lamberson: presented with the evidence of wrongdoing, plaintiff attempts to run away
I refer the readers to DieTrollDie’s reporting on this case for the full history. Below is a very short recap: this case was so eventful that I would keep writing this post for days if I covered every detail.
Short history
Mr. Lamberson was sued by a one-copyright shell Elf-Man LLC, initially as one of 29 anonymous Doe defendants. Every defendant was named in the amended complaint after Charter communications coughed up their customers’ information to plaintiff’s lawyer Maureen VanderMay.
Mr. Lamberson was lucky to hire attorney Christopher Lynch, who started methodically dismantling the bluff — plaintiff’s “evidence.” There were many eyebrow-raising discoveries made over the last months worthy of a detective story. A very questionable copyright assignment invoked the memories of Righthaven. Ostensive German experts Daniel Macek and Michael Patzer (many remember him from the Bellwether farce) happened to “work” for a bogus (and delinquent) South Dakota corporation registered by a con artist — a disbarred California attorney. And so on.
The most damning recent finding was a leaked presentation of the real force behind this lawsuit — a foreign “Anti-Piracy Management Company” (infamous and disgraced Guadraley in disguise). This presentation described the troll’s kitchen in all its cynical and inhumane efficiency. The revelation made it possible to connect many dots and explained many things we knew, but couldn’t put our finger on it.
Recent events
After the revelations, this lawsuit was on the collision course with the ground. On June 3, 2014 plaintiff’s attorney, Maureen VanderMay, asked the judge for a permission to be removed from the case:
Issues have arisen between Plaintiff’s representatives and counsel, the nature of which make it impossible for counsel to both continue with representation and comply with the governing rules of professional conduct.
We can only wish to learn the details of these “issues.”
Yesterday Mr. Lynch filed a motion to compel discovery, namely, to provide the relevant correspondence between the plaintiff and APMC/Guardaley. The defense claims that this correspondence is not privileged. And even if it was privileged, VanderMay waived this privilege by failing to timely object to the discovery request — she sent her objections too late. Read the motion about her attempts at weaseling out after being caught lying about the date of the service.
Declaration of Christopher Lynch and exhibits are must-read too: especially emails in the Ex. B:
These events did not reflect well on the troll, and Elf-Man, via attorney David A. Lowe, specially hired for the occasion, filed a motion to dismiss this case with prejudice; in other words, a disgraceful attempt to cut and run:
The dismissal of Plaintiff’s claim and its express statement that it will not enforce the asserted copyrights against Defendant divorces the Court of jurisdiction over Plaintiff’s counterclaims. No objection by Defendant can enable the Court to retain jurisdiction because there is no case or actual controversy and no present basis for subject matter jurisdiction. Consequently, the action in its entirety must be dismissed.
Yeah, right: I used that gun to rob you, now I tossed this gun and promise not to use it again. Therefore, no objection can enable the prosecutor to retain the charges. No more controversy here: am I free to go, officer?
The ball is now in the defense’s court: will or won’t Lamberson stipulate to the dismissal? The plaintiff cannot unilaterally walk away because the defendant both answered and counterclaimed. I’m pretty sure that the court won’t dismiss the case if the defense disagrees (the argument about the court suddenly losing the subject matter jurisdiction is hogwash). I won’t blame Mr. Lamberson if he decides to accept a large reward in exchange for closing the case: he and his attorney already did a titanic job of dismantling the international extortion machine.
Malibu Media
So, what about our favorite troll: Keith Lipscomb/XArt/Malibu Media? After Morgan Pietz connected the dots in his mighty work in Maryland, it is clear that all the US trolls that have the German connection are essentially the tentacles of the same beast — Guardaley. Lipscomb continues (as recently as on 6/10/2014) referring to Michel Patzer as a witness in imaginary future trials, as if it was not shown that one of the two Elf-Man’s “experts,” a German national Mr. Patzer, was involved in a fraud:
At trial, Malibu will call Mr. Patzer to testify that the PCAPs and MySQL log files contain evidence that proves that an infringement was committed by a person using Defendant’s IP Address. Malibu will not use Mr. Fieser for this purpose because he will not be able to establish the chain of custody to the PCAP. To explain, Mr. Patzer, not Mr. Fieser, restores the PCAPs saved onto the WORM tape drives and makes forensically sound copies of them for use at trial. Thus, only Mr. Patzer can testify to the chain of custody.
So, while witnessing the grimace of fear on one of the Guardaley’s heads is heartwarming, I’m pretty sure that another one — Mr. Lipscomb — is not at ease these days either: the comeuppance is around the corner.
It is not a question whether we will witness a Prenda-like downfall of the German-connected trolls, the only questions are 1) when, and 2) how much harm upon the people the scammers will be able to inflict before they are shut down for good.
Coverage
- Techdirt: Once Again, As Details Of Questionable Copyright Trolling Practices Come To Light, Troll Desperately Tries To Run Away by Mike Masnick.
- The Spokesman-Review: Media company drops Internet piracy lawsuit against Spokane Valley man by Tom Sowa.
Fight © Trolls 
Oh my! Is it possible that a very small cartel of Germans gins the entire movie copyright shakedown scheme here in the USA.? Say it ain’t so.
it ain’t *bwahahahahahaahahahahahahahaha* hang on hang on I know I can do this…
it ain *bwhahahaahahahahaahahahahah*
yeah… nfw I can do it.
Is anyone really surprised that Vandermay wants out of the ELF-MAN case? I doubt that many of us in the Internet hate group ( by the way SJD I didn’t get my ” I Hate Trolls ” T-shirt or my complimentary ” Proud Member Of Internet Troll Psychopath Group ” Bumper sticker , so if you could mail those out soon, that would be great ) are really surprised that Vandermay has filed to be allowed to gracefully exit the case.
While I can’t say I blame Vandermay for wanting an exit, I do not see the Judge granting her an early exit nor letting her slink away. There are many problems in this case that have been caused by Plaintiff and their so called ” client ” and the monitoring firm who provided affidavits and other “evidence” in this case.
In my opinion as with most of these troll cases the evidence and the monitoring firm is very thin to begin with, yet the trolls continue to file cases with it, and this case that Vandermay filed is no exception. Vandermay pushed on through this litigation insisting the defendant infringed their Plaintiffs content. This point was pushed by Vandermay for quite a while as the case went further.
The fact that Vandermay has now had a “come to Jesus moment” and wants to absolve all her sins and come way clean is wishful thinking in my opinion. Vandermay could have exited long ago ( like when she first looked at the case before filing it with the court IMHO ) she chose to push it forward to see if the defendant would settle for fear that Plaintiff and counsel would take it to the end and in my opinion this is a gamble that Vandermay took and lost, so be it she has to deal with consequences of her action in this case, period.
Lynch has done a lot of work in the case and it reflects very well for the defense. Lynch has Plaintiff and their counsel in a corner and I do not see them being able to get out of it that easy. In fact unless the Judge takes mercy on the Plaintiff counsel they are in for a rough ride as this progresses.
I would be of the thought that Vandermay could be in line for a bar complaint with her actions in the case. The failure to communicate with Lynch in response to letter and email sent concerning the matters the Defense want to have discovery on and the dates of service, I believe would be actionable in a bar complaint for non compliance with rules governing conduct of a lawyer via state bar and ABA rules of conduct.
Vandermay also has a duty as an officer of the court to notify defendant counsel and the Judge of and ethical issues she encounters in her duties during the case with regards to her client, and any evidence put forth in the case in regards to affidavits, declarations, evidence, witnesses and to notify the court swiftly.
The Judge I believe is going to see the fact that Vandermay pushed for discovery of defendant Lamberson computer while stone walling and not abiding by the discovery/deposition schedule that was scheduled with the court by both the plaintiff and defense counsels and then cancelling those schedule dates by saying that those who were to be disposed at the discovery hearing “could not make it ” is not going to sit well with Judge considering that all parties were aware of the fact that discovery was to take place at that time and date.
The fact that those discovery dates were cancelled by a lawyer for plaintiff who had not been associated with the case is going to have the Judge look at Vandermay and ELF-MAN and wanting to know why this occurred so late in the case when the time and dated were known well in advance and why they are now delaying the defendant counsel the opportunity to depose them so far into the case and how this new lawyer for Plaintiff came to be involved ( btw… does anyone know if Plaintiff’s new counsel David Lowe has asked the court to be entered and allowed to be on the record as plaintiffs new counsel and if Judge allowed it ?
In reading Lynch’s submissions to the court, Lynch brings up the fact that attorney Carl Crowell contacted him to let him know that Vandermay would be asking the court to allow her to get out of the case. Lynch in the conversation about the case tells Crowell about the questions he is looking for answers that Vandermay was to provide but has not done as of yet. Crowell in the conversation tells Lynch he will try and provide them and they end their conversation.
Lynch mentions in his filing with the court that Crowell had not provided the answers to Lynch and they have not spoken since. That to me raises the red flag in my opinion that Crowell may have looked at what has transpired and the actions so far in the case and decided to not insert himself into the case as their could be some serious repercussions that could apply for the plaintiff and said counsel for the plaintiff.
The fact that David Lowe has now come about and has asked the court to let ELF-Man dismiss the case and to do so the Plaintiff is not liable for any costs by the courts is a very telling tale. I do not see the Judge hearing the case allowing Lowe’s motion of dismissal to be granted. There would have to be hell of a reason for the Judge to allow ELF-MAN to dismiss this case, and from what I have read in the Plaintiffs motion there is NOTHING compelling to allow that to occur this far into the case.
While I do agree with assertion that Lamberson could walk away with a tidy some of cash here, I believe we are not at that point as of yet. Lynch and Lamberson has the hammer in their end of the court. The Judge that is hearing this case is not going to be impressed with the games that the Plaintiff and Plaintiff counsel has been playing in his/her courtroom and the tactics that have been played by plaintiff’s counsel.
If the Judge dismisses the case it would honestly be a travesty of epic proportions in law and of the rules of court and to the defendant who has been dragged in the mud when this all started. While the Plaintiff has rights, so does the defendant and to allow the case to be dismissed would trample all over the rights of the defendant to a fair and just conclusion to the action brought against him at no will of his own and in a case that should have never been files in the first place with a dubious copyright and entities that had no standing in my opinion to file this action in the first place.
The fact that this case was initiated by the Plaintiff and Vandermay means they chose to do so knowingly. ELF-MAN had a duty to make sure the representations and evidence supplied by the monitoring firm and that their work’s copyright was valid and fit the definitions required by law to used to litigate the case. .Vandermay in my opinion has a duty as a Lawyer and as an officer of the court to verify before bringing this case forward and filing it to make sure that she verifies all of Plaintiffs documents, evidence, affidavits, certificates, works, copyrights, methods of investigation, entities are in good standing and chain of evidence,as well as thrid party submissions and actions are within the boundaries to fit the requirements to file a case such as this and that are lawful.
I see a failure of many of the aforementioned items Listed above in this litigation in my opinion. The only way the Judge allows a dismissal in this case is if the Plaintiff writes one hell of a big cheque to Lamberson for dragging him into this mess of case in the first place, that’s the only way I see this situation resolving itself.
I do see the trolls not in this case but in other active case applying some pressure to people on Plaintiffs side to negotiate with Lynch to get Lamberson to take an agreement to dismiss with a confidential settlement involving cash to walk away. This case and its results if taken all the way by Lamberson and Lynch could have some scary repercussions for the folks on Plaintiffs side and Vandemay but for the troll lawsuit game as well. If this litigation goes to the end by the defendant and counsel the trolls would not come out unscathed in a Judges ruling at the end.
This could have a very serious rebound effect on other troll cases like this that are being heard or have been filed in various courts. The last thing the trolls would want is another Judge Wright like ruling that could further hurt the game of cash settlement troll lawsuit generation and remuneration.
The trolls are in trouble on many front and the Prenda case and others like this one are going to deal a serious blow to them and be brought up in more and more cases. Judge Wrights ruling is still effecting Prenda long after it came down.. This case as well as a few other could have some detrimental rulings as well that could shake the troll litigation to its core
BTW I should have mentioned this in my previous reply did anyone notice the objection that Vandermay had filed in response to the answers Lynch was seeking in this litigation that they seem to almost be a copy of the objections that were filed in a Malibu case regarding objections to depose that Plaintiff and evidence submitted from said monitoring company.
Why do I get a sense of Deja-Vu when I look at Vandermay’s objection in her filing. Do they all use the same cheat sheet or something. In my opinion you would swear it was the same person writing both objections and the reasoning why they have objected to that particular avenue of inquiry by defendants counsel. I find that very interesting.
Good catch!
Very..
Thank you SJD for covering this. The Trolls and the masterminds behind this are scared and see rough seas ahead. If only they were not so committed to their course. They trully feel that they can slink away and only take a small hit from the court. Based on what I have heard of this judge (who is a former AUSA), he is not going to be to impressed AND he smells the deceat that needs to be brought out to the open. He may very well lets the dismissal go through, but IAW FRCP 4, I believe that can only happen if he allows the counterclaims stand. Then we have a Defendant who is adjudged clear of the offense (With Prejudice) AND the case AGAINST Elf-Man still stands. I think I said before that the best option for these “A$$clowns” (My wink to their Prenda like actions) is for them to let the court sanction them for ignoring any/all orders to compel. They could easily pay out and try to get their losses. The problem they may face is that if the court hold Troll VanderMay accountable and applies presure, she may turn and divulge inner working secrets. I doubt she has too much inner working knowledge – but there is something interesting that she knows. She would not have stated as such in the motion to withdrawl. This was a message to the Plaintiff that she has dirt on them and will use it if needed to save her butt.
On the Malibu Media side, this clearly has Troll Lipscombs interest. He knows that the masters (foreign entities) are not beyond letting him and his firm take a fall. They will simply try to rename and regroup and claim they are not part of the previous organization. Troll Lipscomb is not stupid and has adapted his organization each time to make settlements more likely. The problem is that the greedy masters sold their services to some people not as slick as him. So when they fall, they will start the down fall for Troll Lipscomb and Malibu Media. Hey troll Lipscomb – these are my thoughts and opinions – nothing more. 🙂
DTD 🙂
Anon E. Mous excellent observations and you covered some of my questions also. I have not seen the docket, but also wondered if Crowell or Lowe had put in an appearance and been accepted by the court, especially not knowing if the court had allowed Vandermays’ withdrawal. Might make for more questions with Lowe’s filing of the dismissal if those things have not occurred previously. Anyone have the docket? Good article also SJD. Think we are doing capes Mous, haven’t heard about tee shirts yet…pick yours up at treehouse!
Thank you. The docket (archive.org) is linked from the first paragraph. Also, DTD extensively covered this case over the last months.
Sign me up for one of those t-shirts.
I’m wondering who Lipscomb will substitute for his newly designated expert Michael Patzer since he has testified to work for non-existent Montana Corporation and can be reached at Guardaley’s German telephone number. This seems to blow a hole in Lipscomb’s numerous claims in Maryland Federal Court that his expert doesn’t work for Guardaley.
Anon E. Mous — Reading the Motion to Compel, I note that the defendant has asked the court to sanction the plaintiff in part by dismissing the case with prejudice. Since the plaintiff has asked to dismiss with prejudice, and since the defendant has asked the same, I would not be surprised to see that happen, on grounds that both parties ‘want out’ so to speak.
HOWEVER. As I read further into the motion to compel, I note that there is mention of counter-claims of some description. Not being a lawyer or thoroughly conversant with the rules of civil procedure, I’m not clear whether the counter-claims would be enough to preclude dismissal. Moreover, I’d be curious to know if the counter-claims would remain in force and – in effect – become a separate cause of action if there is a dismissal, with or without prejudice.
I see that In Lowe’s affidavit to the court asking to dismiss the case filed against Lamberson that he states he is the attorney of record for ELF-MAN. I don’t recall reading anywhere that Vandermay had her request granted to allow her to leave the case ( that would have to the next greatest miracle second to Moses parting the Red Sea )
I also did not read any where that Lowe was allowed to appear for ELF-MAN by the court ( Please correct me if this is out there in that vast internet that we trolls haunt others in ) While I am sure Lowe would love to get this dismissed for who ever is behind ELF-Man, I would be surprised if the Judge allows it so far into this.
I stated before that the only way this will go away for ELF-MAN to continue to file troll lawsuits in the future is if the troll cuts Lamberson a huge check with a confidentiality agreement thrown in.
Honestly Lamberson really could push this to the end and he will get the troll coughing up the cash regardless. The trolls are in a very very tough position, and they are not going to come out unscathed unless the Judge lets them dismiss the case, that being said I don’t believe the Judge will do that with everything that has gone on in the case. They are very far into it, and do allow a dismissal would be a miscarriage of justice to Lamberson and abuse of the court in my opinion.
I believe that doc #56 (not recapped) is Lowe’s appearance. Today Judge Rice let VanderMay go (see the update).
Vandermay better go buy a lottery ticket because she was very lucky IMHO to be allowed out especially with the claims made in Lynch’s declaration to the court.
And as for Lowe, why on earth he would want to sub-in as counsel of record is beyond me. It will be interesting to see where the Judge goes with Lynch’s affidavit and the questions raised in it.
@SJD Has anyone thought of making a list up of the various entities that Patzer. Macek and Fesier are associated with and the various titles/positions that they allegedly hold in said company?
I believe if you look at the various court filings and what has been stated publicly in court documents by troll attorneys and in affidavits by said technician ( or whatever title they have listed that day for what ever entity they are using that day as said copyright enforment monitoring entity ) and look at who’s name is on the declarations filed with the court to start the case and is being used, the monitoring company name and the title they claim to hold at said company that is in the filing with the court to get an order to see if they can get subscriber information from the case filed.
If you look at Patzer, Macek and Fesier, their names come up in different cases and in different titles of position in one entity to the next one. First they are the software developer, then they are technical director or owner or technician and now we are seeing consultant and we have also seen as a partner or manager in some cases.
This is starting to remind me of Mark Lutz who went from being process server to corporate representative to sole owner / shareholder and lone employee of AF Holdings. Who’s job title and status seem to change day by day.
I think if a list were put forth gleaned from filings with the court we would see some startling and glaring instances where the same names keep coming forward in a variation of entities and titles. It would also be a great reference for the ANTI troll internet community to have.
We had been seeing Feiser’s name on a lot of documents for different entities but not as of late and we see that in cases where Feiser’s name is there and questions about that declarations are raised and the plaintiff has stated that it is usually someone other than Feiser is the only person who can speak to the results. Now why would that be? We have seen Lipscomb say that only Patzer or Paige can testify to the results or something like that.
I have always found that odd that Fesier declaration is used but yet the guy can testify to the resultsl and it has to be some other person? Now why would that be? Feiser obtained the results and signed a declaration attesting to them but isn’t able to testify to them? Now .why is that?
I would be of the opinion Fesier is second cousin to my invisible friend I had as a child. Of course that is my opinion only and if Fieser decides to sue me for it I guess I will get to actually see the international man of mystery.
That being said I think this list could be quite informative and come up with some interesting results as I dont think anyone has come forward with anything like it as far as I am aware. Just thinking out loud.
This is a very interesting idea.
I cannot help but wonder what would happen if a bunch of troll-fighting legal bods were to jump in and offer pro-bono assistance to the defendant and his lawyer to keep the action going and blow the whole rotten powderkeg right open.
Criminal sanctions against the plaintiff? Discovery of the connections between the various players? RICO investigations?