Guardaley | X-Art

Malibu Media’s “evidence”: not only is the king naked, he doesn’t even wear sunscreen

There are many good responses to copyright trolls’ activities these days. This opposition to Malibu Media’s attempt to game the courts by filing a last-minute motion for enlargement of time to complete discovery caught my attention for the reasons described below, especially the last one — the one that gave the title to this post.

The motion was filed on 8/4/2014 in Malibu Media v. Eric Siegel (PAED 13-cv-06252) by a New Jersey attorney Darth Newman.

Protective order gamesmanship

First, Mr. Newman describes a painfully familiar Lipscomb’s modus operandi: trolls drag their feet till the last moment (often declining defendant’s offers to examine his/her hardware), and then suddenly request an extension. Rinse, repeat.

This case wasn’t different:

The Court’s April 25, 2014 scheduling Order set forth a bifurcated discovery plan whereby Malibu was obligated to complete certain discovery, primarily focused on Mr. Siegel and his computer hard drives, before moving on to the expansive third party discovery initially sought by Malibu. Malibu has failed to timely pursue even this first category of discovery.

In the several months since the initial conference, Malibu has only pursued document requests and interrogatories, to which Mr. Siegel provided timely responses.

Then, what supposed to be simple protective order negotiations, turned out to be a delay tactic: Malibu kept insisting on unacceptable terms:

On July 14, Mr. Fiore finally sent an alternative protective order but this draft was both limited to the examination of Mr. Siegel’s computers and purported to expand the materials Mr. Siegel had agreed to produce to include his tenant’s personal property. The July 14 draft failed entirely to protect Mr. Siegel’s confidential and personal information.

One-way discovery

We witnessed many times in the past: the crooks want to know everything about the defendant (including his/her purported porn habits), but when it comes to production of plaintiff’s relevant information, all we see is desperate attempts to obstruct the due process.

Not only has Malibu been slow with respect to making discovery requests, it has also been sluggish to respond fully to Mr. Siegel’s discovery requests. Mr. Siegel propounded requests for documents and, although it timely responded, Malibu interposed a number of frivolous objections and seemingly arbitrary limitations on the materials it would agree to produce.

Malibu offered to produce some documents and counsel have traded correspondence about Malibu’s objections and limitations, but, to date, the only documents Malibu has actually produced are copies of copyright registrations which are publicly available online.

A side note: who is in charge?

If you look into the Exibit A (email correspondence between Malibu’s local Chis Fiore and Darth Newman), you will find yet another proof that Fiore is simply a pawn: he merely forwards documents to and from the Troll Center (Lipscomb’s associate Jessica Fernandez curated this litigation):

Where is the evidence?

The apotheoses of plaintiff’s thuggery, and the fact that prompted this post, was the admission that the troll don’t even have the most critical information handy:

Malibu agreed to produce a limited portion of the electronic materials it intends to rely on to prove its case but has indicated that doing so will take an additional four weeks. Did Malibu not have this information when it filed suit?

Read it again and try to believe your eyes: these charlatans file lawsuits en masse indiscriminately and don’t even possess the information that forms the basis of their cases:

In particular, Malibu agreed to produce a subset of the data it claims shows Malibu’s investigator’s alleged connection(s) to Mr. Siegel’s IP address and the data allegedly downloaded from Mr. Siegel. This data forms the basis of Malibu’s case and Mr. Siegel and his expert(s) must have a fair opportunity to analyze all of it.

In my opinion, this is yet another visible sign of a gross abuse; it is very frustrating that courts around the country continue to swallow trolls’ bluff so eagerly.

The reason I use the word bluff is in part premised on recent events in a case involving another Guardaley-driven lawsuit, Elf-Man v. Lamberson (WAED 13-cv-00395). It appears that the trolls in that case simply don’t have any incriminating data beyond a TCP/IP handshake and transmission of a part of a movie that is shorter than an average wink. It is not a big stretch to suggest that the same game is being played here. Moreover, no one ever saw any Guardaley’s evidence: all we saw was a smokescreen of “PCAPs,” “WORM tapes” and “German government issued timestamps.”

There is simply no valid reason why producing the most essential evidence can take an entire month. Not only is the king naked, he doesn’t even wear sunscreen to withstand the sunlight of even a casual scrutiny.


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15 responses to ‘Malibu Media’s “evidence”: not only is the king naked, he doesn’t even wear sunscreen

  1. The fact that this charade has been going on in various permutations since 2011 without any court calling bullshit (with one notable exception) is nothing less than a disgrace and a total failure of our federal judiciary.

    With all due respect federal judges, shut this blatant extortion racket down. Your inaction and justifications degrade your authority and encourage mockery.

  2. I have said this before with Prenda cases where the strategy is Deny, Deflect, Delay. Malibu/X-art cases seem to be no different.

    Let’s tip toe thru the strategy that appear in how the litigation moves forward ( in my opinion ) from the looks of the various cases filed thru the country. Malibu always always always seeks to get discovery going with the same olf 27 page filing that accompany”s the suits when filed with the court, so nothing new there.

    Next of course is the hope that discovery request is granted so the infringer can be named ( and the settlement dash for the cash starts ) of course soon as the ISP subscriber is named, the trolls fall over themselves to get the ISP subscriber named in court filings to let the subscriber know they are going to be named in a civil suit and big scary damages could be awarded ( hmmm, I would be of the opinion this is designed to pressure the ISP subscriber to avoid it all by contacting them and beg to settle ) ( like the trolls don’t say that prayer nightly before they go to sleep )

    Next part of the operation is the settlement phone calls and letters sent to the ISP subscriber with the blackmail demand – oops – I mean offer to avoid all this nasty business and help you to repent your ways by paying a lump sum of cash that you would never dream of giving us unless we were suing you for copyright infringement.

    Now we know the trolls like those defendants who don’t know any better and call the trolls out of desperation, thinking that my please of innocence may resonate with the trolls ( um no, you’d have a better chance of winning the Powerball Lottery than getting any empathy from the trolls who see you as their very own little ATM to make a withdrawal from )

    Now of course the trolls hate it when the ISP subscriber balks at their settlement offers and pressure tactics of being named in a civil suit for copyright infringement and raving that ISP subscriber whose pocket they were going to pick for some easy cash who then went and hired an attorney rather than cough up the cash to the trolls.

    Now of course the trolls do not like this ( right Keith and friends? ) but it doesn’t mean they are going to go away, no they are now going to bluster and bluff, and pound the table to let your counsel know they are going to take this to trial and get awarded one billion dollars! ( okay…they wont get one billion dollars, but Keith and fellow trolls sure hope they get as close to it as possible )

    Notice how I stated they SAY they will take this to trial ( has this happened sure…does it happen a no…. no it hasn’t, percentage wise YOU have a better chance of winning the Powerball Lottery than Malibu actually wanting to take this to trial (could they, sure. Do they want to do it? Um no. Have the trolls taken these types of cases to trial. Yes they have. Trial’s are expensive, for them and you… and believe it that they are using that to their advantage and will let you or your lawyer know this at every opportunity! That sounds like blackmail you may think, they see it as legal recourse. ( My opinion is it is a pressure tactic, pretty much )

    The trolls love to serve and have those served not file with the court and ignore the court process as it gives a default judgement and they get to pull numbers from the magic 8 ball which they then proceed to ask the court to award them ( even though the number is some obscene amount, most judges rubber stamp it because YOU didn’t answer to the court to the allegation of infringement

    ( Don’t make the mistake that by ignoring the trolls this will make them go away and they will forget you, on the contrary this only emboldens them in their pursuit of cash and I would be of the opinion they will employ more legal methods to get that cash they won in a default judgement by any legal methods necessary )

    Next you can expect them to ask for discovery from you and your electronic devices and hoping any other device that could help in bringing on the pressure to get you to settle ( Yes the theatrics you are going to be subject to are designed to hopefully prove infringement and find some semblance of guilt and proof of infringement on your electronic devices.

    ( I am of the opinion this is a legal avenue when used rightfully, with that said this is also a pressure tactic and one to let you know they are going to try and find anything they can to make you look like the scofflaw they claim you are ) ( You better hide little Johnny’s Pirate of the Caribbean costume for fear that they point to it and say ” Ah-ha, we knew you were a pirate and thief and thus proves our allegation” ) ( insert your own vision of the Trolls high five-ing one another and saying in unison how they are the baddest lawyers in the land )

    The trolls will ask to have a discovery schedule set, for you and vice versa and will push for this to occur asap ( what pressure, right?) Now if you have hired counsel and they have dealt with the trolls before they are going to want to discovery from the trolls as well. On the outside this will look fair, ( In my opinion you may not think this later on as this process goes and gets closer to the scheduled dates Now why do I think that, the trolls will want you to give up all to them in the discovery process before they give your side much of anything to work with…. ( and that’s me being polite )

    In my opinion when it comes to you getting equal treatment from the trolls for discovery items from their side, you have a better chance of seeing pigs fly and the Easter District Court of Texas becoming anti troll then the trolls playing ball on your counsel’s discovery towards the trolls.

    The trolls will say they need to examine your computer but as much as they pound and shout how they need to do this, they really arent interested, it cost them time and money and they want to spend as little as possible to get you cash, so look for that sense of urgency to wane if they don’t seem to be persuading you to part with your cash to them to make them go away ( yes , that is the goal still to get your cash, remember these suits cost the trolls little to file ( although they will claim otherwise, even though some judges have scoffed at those claims )

    Look for deadlines to supposedly be set in stone and then look for extensions and delays and for the dates to be moved further down the road..( Now you may be asking why would the trolls want to do something that is costing them more money to delay. ( Well it doesnt really, it is part of the Deny, deflect delay strategy they employ. The hope is that YOU will tire of this and pay them off) .

    ( The trolls hope is that your legal expenses force you to cave and settle with them, they are hoping the more fees you occurr, you will say, ” man this getting expensive I should just give them the cash and save my money before I go into real debt”. Remember these suits cost them little to file and plod through at this stage )

    Now you may be saying to yourself ” I have downloaded any of these shitty movie or even heard of these movies, so I have nothing to hide let them examine my computer and stuff and show them I am innocent of this and they will find nothing and be obliged to let me go.

    Well in the real world most people would think that’s the logical conclusion to this right? Wrong, the trolls are still going to pursue you to get you to part with some cash, even if it’s a fraction of what they were asking. They aren’t going to up and admit they are wrong, no chance! Look for them to claim you destroyed evidence, hid evidence, got your dog to eat the evidence or that it wasn’t you but some other person in your house ( preferably with a penis ) ( no they don’t have a penis fetish, they just believe it has to be somebody with a penis ) ( discrimination at it’s finest! )

    The litigation is designed to cost you one way or another to pay them off. Now or later. If it takes them months to get the cash, they are fine with it. Dates that will be set will get moved like a football down the field in a game, all designed to keep pressuring you to settle.

    The trolls will claim this is all about copyright enforcement and protection of their clients art ( bwahahahahaha art…lol.. such delusions of grandeur ) In my opinion this is all about revenue generation not enforcement. The enforcement and protection angle looks great in court, but the fact that these lawsuits are filed all over the country tells a different tale of grifting on a very big stage.

    There are lots of players on the stage, but only a handful are the real force behind how this litigation is acted out. played in the court and who really benefit from said litigation and the monies derived from it. This is fact.

  3. Perhaps it is time the Judiciary stop pretending that we live in a simpler time when when someone has a title they are automatically trustworthy.
    How many cases do we need to see Doctors, Lawyers, Cops, Elected Officials lying through their teeth given a pass by the courts because they are elevated in the eyes of the law, because there are rules to keep them “honest”?
    They are human, they are fallible, and they will put their own asses above the truth.
    The alleged penalties. for them breaking the rules mean nothing. The systems in place to punish are more concerned with how the whole system appears rather than dealing with those who violate these trusts.

    The simple fact the lawyer named on this case does NOT have the evidence in their possession should result in a benchslap and referral to the bar.
    If they do not possess the evidence themselves how, pray tell, can they have done any due diligence?
    If they are handing off handling a case bearing their name to a 3rd party, who most likely is not admitted to the bar in that state and has no standing with the names parties before the court, should be a violation of the rules.

    Allowing this to continue is degrading the legal system that much more. It has become what people who were mocked as wearing tinfoil hats have claimed it was. They need to clean their own house before they regain the moral right to sit in judgement over others. If they can’t/won’t enforce rules and penalties on their own then Justice is no longer blind, and is leaning on the scales.

    • Sadly, there never was a time when “someone with a title” can be automatically treated as trustworthy. Every time, every culture, has it’s share of “robber barons”.

      From a philosophical perspective, I think the bottom line is which is the lesser evil:
      a) take an initial complainant at face value and give them a chance
      b) deny a complainant their complaint trusting in it to be bogus before it’s actually proven

      The lesser evil is a – but that doesn’t mean the system should not punish those abusing the system. And until the costs of abusing the system start to outweigh the benefits from abusing the system – there’s no deterrent for those of lesser ethics.

      Personally – once the trolls have been proven to be abusing the system – I think the penalties should be on an escalating basis:
      first “offense”: grant reasonable costs
      second “offense”: grant costs requested (including above reasonable)
      third “offense”: 2x costs requested
      fourth “offense”: 4x costs requested
      fifth “offense”: 8x costs requested

      With such a penalty system in place – abusers learn and decide real quick that the costs associated with the next attempt aren’t worth it. Those that are just “learning the ropes” and making mistakes start to perform proper due dilligence so they can avoid the mistakes.

      • I like your idea, but think the problem could be reduced at least if the system was changed to a true loser pays, and the Plaintiff were required to post a reasonable bond to cover those attorney fees and cost when they file.

        • Philosophically I’m not sure I agree with “looser pays”.

          First, there’s the issue of both sides having reasonable positions and simply disagree – an unfortunate situation but it does happen. Honest disagreement. There’s even the reasonable situations where both parties thought they agreed – but a subtle difference in perspective meant something quite different for each.

          In such a case, it makes sense each side should pay their own costs even if the ultimate ruling favors one side over the other. I’d expect most honest disagreements can be resolved around a meeting table. However, once emotions come in to play they can too easily over-rule how people would normally behave so sometimes it might require an intervenor to make a decision.

          Secondly, and very sadly, far too often one can too easily “purchase” justice. Look at what SCOg got away with requiring of IBM (a server with the complete history of AIX for example). IBM was easily able to afford the costs SCOg built against them. But let’s say SCOg had targeted a small business instead. They wouldn’t have been able to afford such costs – SCOg seems to have been clearly in the wrong…. would it really be Just if the small business that couldn’t afford to fight that kind of battle ended up paying SCOgs costs as well?

          Which system – looser pays vs each pay their own – is best? No idea…. I don’t have sufficient background knowledge and experience to be able to even come close to guessing. All I can do is point out that the lesser of those two evils seems (at this point) to be “each pays their own” – with the exception of the exceptional circumstances as defined by Law of course.

  4. Litigation is all out war. I’m afraid the majority of judges, in their Ivory Towers, receiving compensation to administer justice from the tax payers, are unable to see that the average working American cannot afford to defend his or her self in this broken system. What kind of justice is this?

    $150,000 per infringement of something that has no value (my opinion of Malibu Media’s teen porn) and one can be accused with a simple two initial signature declaration by a foreigner that is immune to US courts and probably has a working address of a rental mail drop box.

    Unfortunately one can spend a fortune defending oneself, and end up with a judge like Baylson in the Bellwether, one sided bench trial, in which he seemed more interested to discover if Collette Fields performs in her own porn productions than whether the investigators are legit.

  5. In most jurisdictions I’ve looked at, gathering information to present in court is covered under restrictions on private investigators – they have to be licensed, bonded, insured, etc., with violation classed as either a serious misdemeanor or minor felony. And there is little or no distinction regarding how much or what kind of information, or how it’s gathered. Most of the time, though, the “investigator” is not licensed in the jurisdiction where the case is being litigated, or in the jurisdiction where the ‘infringement’ was taking place (please note, the two jurisdictions are not necessarily identical).

    And not once – not ever – have I seen anyone bring before the court the fact that the entire complaint is premised on a criminal act and/or that the trolls more or less blatantly violate any number of statutes in several jurisdictions – in the case of a Guardeley, those jurisdictions probably spread across national, not to say continental boundaries.

    Anyone with more knowledge than myself care to tell me whether the judge overseeing one of these cases could be found liable for conspiracy to a criminal act by granting the petition for discovery and brought to bar in the ‘infringer’s’ jurisdiction? And if that’s the case, would there be any point in inviting the judge’s attention to the fact in rather strong language?

    • Not to worry I am sure much like the Batman signal that shone in the sky, Maurice is always on the lookout for the $$$ sign symbol to let him know that negative opinions are being banded about by the Internet Hate Group and their fanatical members and thus he must swoop in and save the righteous defenders of copyright smut peddlars everywhere and spread the truth of how the world really is and how this is about truth, justice and a great payday – er – I mean the american way!

  6. Mr. Newman’s memorandum is well written and concise. I hope the Judges response to the Malibu motion is not the normal, bend over backwards for the plaintiff.

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