Guardaley | X-Art

Indiana judge goes extra mile in striking down Malibu’s motion for sanctions and fees

Malibu Media v. Tashiro (INSD 13-cv-00205) is an eventful case (228 documents so far), one of the few “cases to watch” — mostly copyright shakedown lawsuits in which defendants didn’t succumb to extortionists’ threats and decided to hire competent attorneys to fight back. Some of these cases (and this case in particular) have all the prospects to end up in front of a jury in the first trial of this kind¹.

I wrote about this case in the past: a sad story in which morally dead attorneys “on behalf” of jaded pornographers tried to extort money from an Indiana resident by threatening to destroy her life. Ironically, the defendant Kelly Tashiro is a nurse — a profession dedicated to saving lives.

Tashiro retained Jonathan Phillips and always maintained her innocence.

After the trolls realized that their case against Kelley is weak, they pointed their finger at her husband Charles, adding him as a defendant on 5/15/2014. Phillips began representing Charles too, and the newly added defendant also maintained his innocence since then. No evidence of XArt’s smut was ever found on the household hard drives by the Malibu’s expert.

As in virtually every case, when it turned out that the trolls had neither facts nor law to pound, they universally played the spoliation/perjury card, dangerously moving into the criminal law domain. Apparently, alleging criminal actions has more leverage in wrestling defendants into submission than does weaponizing the stigma attached to “barely legal” hardcore pornography.

On 1/29/2015 a big milestone — an evidence hearing — was set to happen. Not trusting his stooge Paul Nicoletti to handle the matters, Keith Lipscomb himself (with an associate) flew to Indianapolis.

On the eve of this hearing, seemingly sensing the gravity of the accusations of potentially criminal conduct, Charles Tashiro rather unexpectedly invoked the Fifth Amendment right to avoid testifying about certain matters. As a result, the hearing was essentially cancelled.

The trolls went postal. A motion to sanction both Charles Tashiro and Jonathan Phillips was filed shortly thereafter. Lipscomb and Co accused Phillips of orchestrating the “sabotage” of the hearing and wanted more than $15,000 from the defendant and his former counsel.

After the botched hearing, citing the conflict of interest, Phillips withdrew as Charles Tashiro’s attorney. Erin Russell appeared on behalf of Charles shortly after.

On 3/16/2015 Phillips responded, calmly explaining the rationale behind the events that pissed off the trolls so much.

On 4/1/2015 Erin Russell also filed a short and stern response complementing Phillips’s one (this motion was even noticed by a legal media outlet).

Russell’s straightforward response resulted in a pure hysteria: it is hard to read 4/13/2015 Malibu’s reply in support without experiencing pain from rolling eyes exceedingly hard. As Raul put it in 140 characters or less,

Seen this drink before, a Malibu Media Crybaby: equal parts vitriol, hysterical accusations and clearly inadmissible evidence. 226 of 205.

I didn’t elaborate the details of the original Malibu’s Motion for Sanctions. In short, the trolls threw everything they could at the wall in a hope that something would stick. They demanded sanctions based on FRCP 37, 28 U.S.C. § 1927, the court’s inherent authority, FRCP 16, you name it…

We anticipated that the motion would be denied as meritless, but in today’s Report and Recommendations, Magistrate Dinsmore exceeded our hopes: he denied each and every claim, sometimes harshly (“This argument borders on the absurd”), and his thorough arguments didn’t leave a lint of hope for success of possible trolls’ objections to this R&R and/or Bar complaints against Phillips.


¹I deliberately don’t refer to the Bellwether Settlement Conference as a valid precedent.

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18 responses to ‘Indiana judge goes extra mile in striking down Malibu’s motion for sanctions and fees

  1. it likely adds nothing to the excellent Magistrates Report and Recommendations document or to the great coverage that FCT provides but it feels so good that I just have to say it…..and I have to believe that the Magistrate (and many others) would buy me a drink for stating what he couldn’t……


    Tashiro’s Attorneys should go after Lipscomb/Nicolletti for 28 USC ss 1927 sanctions and fees for their actions for unreasonable and vexatious bad-faith extension of litigation. Wouldn’t that be a well-deserved kick-in-the-nuts to the extortion trolls?

  2. I hope the Tashiro couple continue to hold strong. Lipscomb thinks he smells blood in the water with the potential of the husband taking the 5th.

    • I hope too! There is no way this ordeal didn’t take a toll on this family’s well-being. Even Dinsmore noted in FN2:

      Indeed, the very existence of the spousal immunity privilege indicates the importance of protecting the husband-wife relationship. In Trammel v. United States, for instance, the Supreme Court concluded that this “interest in marital harmony” was important enough to “outweigh the need for probative evidence in the administration of criminal justice.”

      All the smut produced by filthy parasites Colette and Brigham doesn’t worth integrity of a single family.

    • I’m not so sure about this. Lipscomb may be smelling his own blood and that of Collete’s. They found no evidence on the hard drives. It is likely the defendants will prevail and ask to be compensated, Lipscomb is trying to avoid this with very outrageous conspiracy theories.

  3. While overall this is certainly good news, this bit of it was troubling:

    “Plaintiff could have made a stronger argument on this point by looking to Defendants’ proposed witness list. That list indicates that “Charles Tashiro will testify . . . that he never used BitTorrent to download any Malibu Media, LLC works,” that “he provided his wife with all hard drives that he understood to be relevant to this litigation,” and that “he never purposefully, knowingly, or intentionally deleted any Malibu Media, LLC files from any hard drives.” [Dkt. 168 at 2.] This proposed testimony is obviously inconsistent with Charles’ later decision to invoke his Fifth Amendment rights, and so Plaintiff could have argued that its reliance on the witness list led it to incur costs in preparing for an examination of Defendant Charles that never happened.”

    What is the point of this? Why hand an attorney an argument that can certainly be used later? Just seems like an odd decision all the way around. Should be interesting if this (doubtfully) makes it to trial…

    • Well the magistrate is just trying to appear unbiased and he doesn’t know why the defendant did what he did. It may be easily explained by defendant’s attorney. The plaintiff’s motion cannot be modified as it has already been ruled on. This is like saying you might have argued this, but you failed to and it is too late clown.

      Just a guess here, but the defendant may have made the correct move. Never provide anything without the other side expending more time and money to get it. Especially when it is obvious the other side is going to spin it into more conspiracy theories. The legal process is about bloodying each other hoping they will settle for as much as possible,

      • That’s also my impression. While Dinsmore is a clever and fair judge in general, it’s like sometimes he feels an irrational guilt that he is too favorable to one party, and tries to “fix” it. That’s only my impression and I may be wrong.

  4. Despite the fact that Plaintiff has known for almost a year now, that they have no evidence that the defendants infringed their copyright protected porn, they persist with their unproven and lunatic conspiracy theories. One can only wonder how many more years the mud slinging accusations will continue, with no evidence? And it appears the judge isn’t falling for any of it.

    • I doubt that the Trolls in all could walk away happy with money being left on the table. We have seen cases where the trolls where in trouble ( Lamberson, Roldan, this case ) where there has been little evidence produced ( besides the trolls 27 page of technical gobbledygook they file with these cases ) of infringement, but yet the trolls have pressed on.

      Lamberson was a classic example of this and even when the trolls where in way way over their head they still pressed on. Why? Much like the Prenda gang I don’t think the trolls can walk away without getting some cash from these cases over their filing fees, I would go so far as to say it might even pain them to have to walk away with nothing.

      Looking at Roldan and Lamberson and what a mess those cases are for the trolls in my opinion just goes to show you that the trolls are more than willing to run the risk rather than have to slink away and admit that their rock solid investigation and proof of infringement isn’t what it is cracked up to be.

      Even in Lamberson when the Judge had I believe 7 other cases where defaults were entered but the Judge had not handed down his ruling in the Lamberson case specifically and all the allegations and evidence the defendants had submitted in that case and one of the Plaintiff attorneys asking to be let out of the case due to conflicts, yet the trolls still submitted to the court with the 7 default cases what they sought for costs.

      That event in the Lamberson case with Judge Rice’s decision hanging over their head not yet being handed down and the trolls pushing for costs on the defaults even though these cases used the same evidence as Lamberson showed right their that to the trolls they will go for the cash all the time even when they are in peril.

      Much like with the Prenda gang got addicted to that easy money from torrent litigation suits, we are seeing the same traits with the trolls that are still filing torrent litigation suits, it’s not about how they get the money, it’s that they get it, and these cases are just a further example of this.

      With that said, I doubt that the trolls would admit they are wrong, much like in the Lamberson case they kept on going and trying to litigate it and get any money they could rather than walk away and admit they had it wrong. I imagine that with Roldan we are going to see a Lamberson like costs award against the trolls, even with the trolls adding the father to the case just shows in my opinion how desperate they are to hang on and hope they get some cash or the judge is lenient on them rather than admit they had it wrong and have the ruling used against them if one comes down from the judge on the defendants side I believe.

      As for the crybaby antics , throw it at the wall and hope it sticks routine and claims of spoliation that are trotted out anytime it seems like they have no solid evidence of infringement, this just remind me of the Prenda gang when their infringement cases weren’t going well….You’d almost swear that Steele is consulting or something on tactics. Now we know that isn’t the case but those were some of the trademark tactics Prenda used, and almost seems like some of the trolls have adopted.

      As with the Roldan case, this one isn’t over yet, while it remains to be seen if a huge Lamberson like costs award will come in the Tashiro’s case I do beleive we are going to see one in the Roldan case. I am sure the trolls are wishing in some of these they got out while they could but the ego on these clowns is massive and to admit defeat and have to walk away from cash I am sure would pain them to no end and cause them to lose sleep at night.

      • “Given Neville’s above-described qualifications, his detailed account of the methodology he employed [see Dkt. 153-1], and Plaintiff’s failure to argue this point, the Court sees no basis for deeming Neville’s conclusion unreliable.”

        About the only thing that could make that better is if after the second phrase the judge had added (detail sadly lacking from the plaintiff’s expert’s report).

  5. It is a little difficult to follow all that has been discovered in various cases. It is interesting to see Malibu offering up allegedly discredited witnesses. It appears Lipscomb voluntarily dismissed cases in Maryland when Morgan Pietz showed that Tobias Fieser and IPP worked on contingency fee basis via a supposedly secret verbal agreement with Lipscomb. I thought in Elf-man v Lamberson that it was shown that Michael Patzer works for discredited Guardaley and from a rent a drop mail-box location in Germany. Also in the lineup is Patrick Paige who allegedly was smuggling in drugs from Canada.

    It is not surprising Lipscomb is trying to get a default judgement, because he will never go to trial with his questionable witnesses and with no evidence of copyright infringement as no Malibu Media porn was found on defendants hard drives.

    The question is how much leniency are the judges going to provide to allow this clown show to continue.

  6. So said to read this
    For the reasons set forth above, the Magistrate Judge recommends that the Court GRANT Plaintiff’s Motion for Sanctions Against Defendants for Spoliation of Evidence and Perjury, [Dkt. 130], and enter default judgment against Defendants Charles and Kelley Tashiro. Any objections to the Magistrate Judge’s Report and Recommendation shall be filed with the Clerk in accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), and failure to timely file objections within fourteen days after service shall constitute a waiver of subsequent review absent a showing of good cause for such failure.

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