Guardaley | X-Art
Malibu Media v. Roldan: the battle continues
The original post “Despite an overwhelming proof of innocence, Malibu’s lawyers continue dragging the defendant through a frivolous lawsuit” (FLMD 13-cv-03007) became unreasonably long with numerous updates, so I decided to spawn a new article.
Motion for sanctions: the pot calls the kettle black
What would arrogant megalomaniac like Keith Lipscomb do when he is royally fucked up? He’d blame the opposing counsel! It happened so many times that it’s not funny anymore. Jonathan Phillips and Morgan Pietz were accused of being members of a “fanatical Internet hate group,” Gabriel Quearry tweeted the fact that XArt owners are filthy rich to “pirates,” and Jason Sweet was declared a “well known anti-copyright lawyer.” It seems that daring to interfere with a well-oiled extortion machine while being ethically and professionally superior to crooks from 2 South Biscayne penthouse will most definitely result in a couple of disparaging labels.
Now Cynthia Conlin joined the club.
On 3/25 Lipscomb filed a motion for sanctions against the defense counsel. You have to read it to believe. Meriam-Webster must consider another example to illustrate the entry for the word Chutzpah. Essentially, the troll claims that it was Conlin’s fault that her innocent client was humiliated by the accusations of torrenting “barely legal” pornography. It was her fault because… she withheld some of the exculpatory evidence proving her client’s innocence — in a conspiracy to ramp up attorney fees:
Unfortunately for Plaintiff, undersigned, and this Court, Conlin’s scheme caused a tremendous amount of wasted effort, time, and money. Through this motion, Plaintiff seeks compensation for its wasted efforts. Specifically, Plaintiff requests an order holding Conlin liable for the costs and fees Plaintiff incurred since September 2014, at which time Roberto would have been dismissed but for Conlin’s deliberate withholding of exculpatory evidence.
Really? We all know how Lipscomb behaves when clear and unambiguous prove of innocence is presented:
Respectfully, you should counsel [the defendant] that when he loses, he will lose everything he owns and owe my clients hundreds of thousands of dollars. Mark these words, your client’s decision to reject a walk away will be the worst decision he will ever make.
So, Mr. Lipscomb and Ms. Kennedy, cut he bullshit, please.
Suspiciously, this motion was promptly publicized by Law 360, a news outlet popular among lawyers. It was published at 12:37 PM without giving Conlin a reasonable chance to express her opinion: a request for comment was sent at 11:44 am, when she was on a deposition. Yet Keith Lipscomb was readily available for a comment:
M. Keith Lipscomb of Lipscomb Eisenberg & Baker PL, an attorney for the company, told Law360 on Wednesday he couldn’t comment on the specific case, but that “Malibu Media and other copyright owners pursuing BitTorrent infringement claims have expressed growing frustration with the very small minority of the BitTorrent defense bar who are litigating in bad faith and unethically.”
You now… unlike those defense attorneys, Keith Lipscomb and his minions abused local law loopholes, forged signatures, threatened to ruin a life of a wrongly accused person (knowingly), targeted a 75 years old who suffers from cancer and has mentally disabled children, not to mention myriad of derailed lives — many over illegally produced obscene videos. Yet according to our “hero,” if you go to 2 South Biscayne Penthouse you won’t be able to close your eyes and spit without surely hitting a paragon of ethics.
Ironically, this motion was filed without any attempt to confer with Conlin, in a clear violation of Rule 3.01(g), and as such I think it doesn’t have any chance of being granted.
On the same day, the defendant answered the amended complaint and counterclaimed, alleging abuse of process and malicious prosecution.
Judge agrees that trolls’ demands are overboard, grants protective order
Now, good news. As I reported a month ago, Cynthia Conlin and Brad Partick filed a motion for a protective order against a patently overboard request to access defendant’s parents’ electronic devices. Today this motion was granted, which means that the judge ultimately agreed that Lipscomb’s arrogant belief that he is entitled to rudely intrude citizen’s privacy at will is a delusion.
As set forth in the Motion and discussed at the hearing, neither Federal Rule of Civil Procedure 34 nor governing Eleventh Circuit authority permit unrestricted access to a party’s database compilations and/or computer hard drives.
Over the next 10 days I will be on a vacation and most likely won’t be prompt in posting updates.
Updates
3/30/2015
On 3/26/2015 Conlin withdrew the defendant’s Answer to Amended Complaint and Counterclaims. Here is why: she seemingly realized that while in the new complaint Lipscomb, per judge’s order, formally added Angel Roldan as a defendant, he de facto substituted his son, as the entire complaints doesn’t mention Roberto at all (except in the caption).
This is the crux of the 3/30/2015 motion for order to show cause why Malibu shouldn’t be sanctioned for violating the court’s explicit order not to drop the initial defendant:
[…] although Plaintiff created the guise of maintaining Roberto Roldan as a Defendant by keeping him in the caption, it effectively dropped him as a party — which is what the Court explicitly told Plaintiff to not do. This Court expressly had ordered: “[T]he Court will not permit Plaintiff to drop Roberto Roldan as a party to this action.” According to a reading of the second amended complaint, as well as the 11th Circuit jurisprudence as shown in Welch and Lundgren, Plaintiff did exactly what the court ordered it to not do. In other words, it violated the court’s order. As the second amended complaint speaks for itself, clear and convincing evidence is shown.
Conlin asks to strike the second amended complaint and enter a final judgment in favor of Roberto, thus declaring him a prevailing party: a necessary condition of eligibility to attorney fees.
4/9/2015
Yesterday Cynthia Conlin responded to Lipscomb/Kennedy/Shatz’s motion for sanctions. Unlike the hysterical Malibu’s missive, this response is level-headed, argumentative and worth reading in full, so rather than re-telling it and pulling out blockquotes, I embed it below:
Fight © Trolls 
Honestly I agree with the Judges on the devices, you do not Carte Blanche access to ever electronic device that was connected or may have been connected to a computer at one time. W e all know that is a fishing expedition in hopes they will find a shitty X-Art movie on the victims computer.
The fact that they always want anything connected to a computer is just an intimidation tactic. It’s not because they believe this or that is on there. Think about it, how many people are going to stick a full length porn film on their cell phone or tablet, or portable music player….next to none.
The whole ” we need access to every electronic device ” is just a pressure tactic, they are hoping they will find anything… anything at all embarrassing that they can trot out or bring up in court. It is more of a desperation play, and even more so in this case in particular when you have sued an innocent defendant and your case went to shit before your every eyes when the defendant proved he was no where near where this supposed infringement took place and has all the evidence to back up his innocence.
What we are witnessing here kids, is desperation, first it was the son who did and plaintiff pounded on the table and jumped up and down flailing their arms around while excitedly shouting to anyone who would listen that their investigation is infallible and their could be no other but the guilty son who did it your honor.
And then when Conlin provided all the proof of the sons innocence, the trolls were too busy to check the facts of this, because they were excitedly waiting for Conlin’s client to cut them a check so the son could cast the chains of infringement off him and be released from his bonds of guilt by way of a check to Troll & Co.
We all know how Troll& Co love to assert how their systems are infallible and the investigation solid as a rock and their is no doubt in their minds who the guilty party’s are before they sue and name and shame them personally in court documents. Well we all know what a bunch of hooey that is , and we all know that these cases are strung together and based on the thinnest of evidence.
Did the trolls withdrawal this case once they found out the son was no where near where the time this infringement occurred, even more so once Conlin provided the trolls with evidence that the son was away… far away and had bills, class schedules, lease agreements etc…. Nope… didn’t cross their mind I believe.
After all the shouting from the roof tops, and asserting in the court documents how it could only be the son, now all of a sudden it’s the father ( the mailman and dog were not in the area at the time so can’t pin it on them, although if the Dad doesn’t pan out There was a Flipino fishing crew on shore leave 350 miles away, so they could be the next possible suspects ( insert menacing Lipscomb glare here )
The trolls were scared plain and simple, after Lamberson got costs, the trolls were in too deep to cut and run and they knew it, so you go to the next person with a penis and name them the suspect. The fact that they have done just that after claiming up and down it was the son just goes to show you how these cases are based on nothing close to any solid evidence… they have an IP Address to go on and that is it.
If they dont get discovery there is nothing to sue over, they need that ISP subscriber name to do social media searches and their nexis lexis search and even then as this case has shown, their case is manufactured from that… and as this case has shown it still doesn’t mean they are right nor show any proof of who did what.
If this was a criminal case you wouldn’t even get an appointment to see a prosecutor because they wouldn’t be able to stop laughing at your for even attempting to bring something like this to them. Toorent suit cases are built on thin evidence in my opinion, there isnt anything to go on except that IP address and we all know that is not enough to say this person or that person did, far from it if you ask me.
While Lipscomb and fellow trolls are trying to blame Conlin for all their problems, I find it more than laughable. It is the trolls that brought this case forward and the trolls who said how solid their case was when they named the son, and we all know how that turned out.
The fact the Trolls are blaming Conlin for vigorously defending her client within the rules of court and the applicable laws just smacks of desperation and in my opinion is just the trolls hoping to get the judges attention off of the fact that the trolls investigation and case is so flimsy that it shouldn’t even be allowed to have gotten into the courts docket in the first place in my opinion
I am sure the Judge will be overjoyed to read the Diatribe that the Trolls have compiled ( think of something else that ends up in a pile and you will know just what I think of their filing ) which is really just a tactic to hope that the judge doesn’t pull a Lamberson on them and sock them with costs for pushing this case forward.
I would be very surprised if the judge doesn’t smack the trolls hands for the vicious attack they launched on a fellow officer of the court with allegations that are unsubstantiated and smack of desperation in their filing for sanctions and costs. If you ever wanted to witness a hypocritical moment that would leave you going WTF…. read that filing
I doubt the Judge is going to think very much of the way Conlin has defended her client, she has done so within the rules and with her clients best interests and those to get this matter resolved. Th trolls on the other hand have gone their usual route to delay and try and frustrate the court an the defendant and his counsel with quibbling over small things, asking for extensions of time and dragging things along to hope the defendant would settle or give them a nice walk away payment.
We all know the trolls don’t like it when a defendant fights them and they are pulling every tactic in the book, and don’t worry once they find nothing upon their so called forensic examination, they will come back to the court saying spoilage or destruction or hindering of evidence that the defendant has done to hinder their investigation of the drives.
Yes get ready for the standard refrains to get trotted out when there is nothing found, and how the plaintiff has been fouled by the defendants counsel and what a travesty in justice this has been for the plaintiff and how the defense should not be awarded any costs because this is all the defendants fault and the plaintiff is the real victim here.
It is all the same moves we have seen the plaintiffs do ijn dozens of cases when they are in trouble, lets hope this judge isn’t listening to the plaintiff whine too much and goes by the facts and rules justly
We have a typo monster nibbling at the edges of this post! s/rodlan/roldan/ !!!
Mouse, just remember that there have been some rather unflattering fiings by Mr Sweet and Co about Lipscomb lately…basically calling him a prevaricator to the judge. Let’s see if Conlin picks up on it and uses it!
I love typo monsters!
Amazing how Lipscomb unleashes his venom when he is faced with paying a falsely accused defendant’s attorney fees. Truly laughable how his only card is always character assassination. Of course any decent defense attorney is not going to rely on only one strategy to defend client, as these can at times fall apart. So a good defense attorney will pursue all possible defenses.
Pay up Lipscomb. It is your fault that you sue everyone on the most flimsy evidence, collected by rent a mail drop box foreign shell companies. employing clownish investigators. Lipscomb will never go to trial because he knows how weak his evidence is.
Re: Lipscomb’s Motion for Sanctions, did I miss the part where the law changed and the burden of proof shifted to the defense instead of the plaintiff?
As a followup thought on this, isn’t everything that is revealed by the evidence he is claiming was withheld something that he should have determined before he ever named the defendant in the first place?
His motion is basically, “I did a really sloppy job of investigating, but they only gave me enough evidence to make a sensible person rethink what they were doing, instead of everything they had, so I should get paid!”
Sorry, got excited for a moment thinking Malibu Media was fighting Rodan…
I’d *love* to have some tricky lawyer to demand to inspect all the hard drives in my house :). My only requirement is that they make forensic copies on site of *all* of them, not just a couple. We can start with the 30 or so 2TB drives sitting in the living room (did I say *all*?), then move on to the next 30 or so 1TB drives in another room. Oh, and there are more…. might even have some old PATA or even ST506 drives. It’s all or none.
I’m not sure which article it’d be best to post this on, but I’ll leave it here. GameFAQs recently did a survey about whether users have ever taken advantage of unsecured wi-fi, 34.79% of respondants (5412 people so far) said that they had used their neighbors open wi-fi. http://www.gamefaqs.com/poll/5836-have-you-ever-used-a-neighbors-unsecured-wi-fi-internet-connection It’s almost like an IP address really doesn’t = a person…
IP Address != Person. Full Stop. Not even when it was all dial-up.
If I’m being nice, I might even let my neighbor use my *secured* Wi-Fi!!! Plenty of businesses are that nice, it helps bring people back. Sometimes they let folks borrow the computer, too.