Guardaley | X-Art

Judicial jujitsu: why not to use Florida’s Pure Bill of Discovery against the troll?

In this short post I just wanted to give some visibility to attorney Paul Overhauser’s comment to my recent post “Déjà vu all over again: Pure Bill of Discovery is still being abused in Florida.” For those who do not know, Florida’s “Pure Bill of Discovery” is an ancient, obsolete law that allows seeking discovery for a future lawsuit (which may or may not be commenced) in a local court. This law is extremely prone to abuse, so it is not a surprise that two most infamous copyright trolls — John Steele and Keith Lipscomb — didn’t overlook an opportunity to obtain personal information of thousands alleged infringers without much effort and resistance.

So, while I think that this law is a travesty, à la guerre comme à la guerre, and what is good for the goose, is good for the gander. Why not to use this law to obtain information that is relevant to Lipscomb’s Bittorent cases? Namely, the most guarded secret: ransom money distribution that would connect many dots in the Lipscomb-XArt-Guardaley relationship, including 1) allegedly contingent cut received by the Germans (or, more precisely, a confirmation that the Germans steer the lawsuits) and 2) allegedly low percentage of the settlement proceeds that the nominal plaintiff X-Art receives.

I already conjectured that SunTrust bank holds these secrets so eagerly sought by the Doe defendants. Give it a try, guys: jurisdiction is just right, and if Lipscomb attempts to protest, the judicial estoppel doctrine comes to play. One more time, in chorus: What’s good for the goose…


On June 11, 2014, Paul Overhouser wrote:

I wonder if a defense attorney could use this tactic on an offensive basis on behalf of a prospective defendant, to serve a subpoena on SunTrust Bank to get the bank records of Lipscomb’s Copyright Trust Fund account. They would certainly be relevant to infringement litigation as the settlement amounts would be relevant to a “reasonable royalty” for a copyright infringement claim. If an attorney wants to do this, email me: I can forward such a Subpoena I served on SunTrust. I never got the requested documents from SunTrust because the Plaintiff quickly agreed to settle.

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Discussion

6 responses to ‘Judicial jujitsu: why not to use Florida’s Pure Bill of Discovery against the troll?

  1. This would be a brilliant tactical play now that you have brought the idea forward. The trolls seem very enthusiastic about using this flaw to obtain ISP subscriber information while keeping out of the limelight to perpetuate the settlement cash rolling in with nary any real information making it to defense lawyers or the internet hate community putting out the information to educate the people..

    I agree with you that using this against the trolls in cases in Florida would be very beneficial to the defendant and defense lawyers. This would put the Plaintiff counsel at a serious disadvantage in that they would have to file documents with the court to get an order asking that the defense not be allowed to use the order granted to them to get the required information from said entity.

    I would be of the opinion that they would loathe having this used against them, but it really is a brilliant idea as it would force the trolls case into the trolls hand and put the case into the light where it had been obscured from view.

    Lipscomb of course will fight tooth and nail to avoid turning over and financial docs that would tell what and who is benefiting for all those troll lawsuits settlements that Lipscomb and Malibu seem to be involved in. That being said I would hope defendant counsel would give this a try.

    btw it’s nice to see that the troll lawyers and Collette are regular readers here at FCT. Who knows maybe they will learn something while they are here, while I doubt that one can never say never.

  2. the fun thing is that you could argue that lipscum/xart have no standing as the supoena is to the bank not them just like they argued standing against the does who contested the supoenas to the isps. literally file their same motion with different names.

    • marble, be careful to tell the judge what you are doing, with nice cross-references and such, so he doesn’t get all P.O.ed at you!

  3. I understand that WP blogs are not setup like forums, but can you make a post for tech questions and answers, that we can keep posting to, and read comments?

  4. @Tashiros:
    Hey, just like in EDPA, if you play games with evidence, the court is going to burn you every time! DTD and SJD, or even Morgan Pietz or Erin Rusell or Delvan Neville can’t help you in that case, and, the game playing hurts everyone else’s case.

    Now, there are some issues with Nicolletti’s story: He doesn’t seem to have provided his experts report, though. First, a hard drive is cheap enough that I don’t know exactly how many I have on hand right now either at home or at work. Second, it sounds like Mr Tashiro is the computer “expert” in the house…so you really can’t expect Ms Tashiro to know about all hard drives that have been purchased, especially when the nice ones from WD cost under $100 and fit in a pocket and can lie forgotten somewhere, especially if it didn’t fail.

    Third, and I say this as a regular user of Windows Explorer, mistakes aren’t difficult to make with it, especially with the “drag and drop” functions. I imagine the problem gets worse on laptops with touchpads, where my cursor periodically jumps at random. The problem is worsened on Windows because you have to know exactly what you are doing to mount a drive “read only” — not because it is difficult, but because the operation is obscure in the user interface.

    Finally, there is this problem of “exhibit A” of spurious and unrelated material that is not in suit. Nicoletti has been sanctioned for that. There’s also the conclusory allegation that you have no business checking hard drives that are about to leave your posession, to pass through a not completely reliable package service into unfriendly hands. Of course you are going to want to know what is going out and look at it…not to mention, if it is a working hard drive, you might want to keep access to your recently used files, or even copy the disk as a whole to minimize the disruption to your computing work.

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  1. How to topple the troll? Follow the money! | Fight Copyright Trolls