Guardaley | X-Art
Malibu Media’s new low: grossly overboard evidence preservation order
|
As a Malibu Media docket grows longer, the probability of accusing defendant of evidence spoliation or perjury approaches 1. | |
| Lipscomb’s Law |
Copyright trolls “litigate” by what in boxing is called “below the belt.” It’s an undisputed fact. Abusing antiquated local laws, soliciting laypeople to incriminate themselves by filling “exculpatory evidence forms,” filing inadmissible “third party infringements” lists to embarrass defendants, asking eye-popping irrelevant questions in interrogatories, ambushing neighbors, making defendants’ names public in violation of protective orders. The list can go on and on. In their servitude to Mammon, shakedown artists don’t respect any ethical (and often legal) barriers. Once in a while we witness a sleaze never seen before.
This time Lipscomb’s local representative in New York, Jacqueline M. James, “on behalf” of a serial filer of shakedown lawsuits, purveyor of illegally filmed “barely legal” pornography Malibu Media/ XArt, did something so overreaching that I think that the involvement of civil liberty groups such as EFF is warranted.
I don’t know if it was Ms. James’s idea or something cooked in the Miami kitchen, but a few weeks ago she started faxing and mailing proposed orders to the NYSD courts where more than a hundred of Malibu Media cases were pending.
The orders in question directed putative defendants to preserve evidence. Some law clerks and judges rightfully ignored such blatant shortcut attempts, but other lazy ones simply signed them without even reading (otherwise I can’t explain how a legal professional can possibly miss the last paragraph — I’ll get to it shortly).
To say that the language of these orders is grossly overreaching is an understatement. First of all, such orders are not necessary because any defendant, once aware of a lawsuit against him or her, already has a duty to preserve all the relevant evidence. So one of the apparent goals of smuggling this travesty was inducing FUD on the Does, innocent or not, strong-arming them to settle out-of-court.
Historically courts were more or less lenient to individual parties who continued using their computers during the course of litigation. Only specific, deliberate spoliation was frowned upon. For example, recently in Malibu Media v. Harrison (INSD 12-cv-01117), Judge Dinsmore ruled that because the defendant destroyed his hard drive without intent to conceal his wrongdoing, he didn’t deserve sanctions:
[…] the Court concludes that Defendant did not destroy the hard drive in bad faith. No direct testimony establishes that Defendant did so, and the circumstances of the destruction as outlined above do no warrant an inference that Defendant destroyed the hard drive for the purpose of hiding adverse information. As such, Plaintiff has not carried its burden to prove bad faith destruction of evidence, and Plaintiff’s motion for sanctions is DENIED.
In any case, it is a common sense that good faith in preserving the data doesn’t require a Doe to stop using his computers, phones and other electronic devices. It would be simply unthinkable in this day and age. And the quote above indicates that even if a spoliation is alleged, it’s the plaintiff who bears the burden of proof.
Yet read one of the identical preservation orders smuggled by James. According to it, a Doe, innocent or not, should either pay thousands for hiring an imaging expert (or even tens of thousands if he/she has many devices/hard drives — more than a typical Malibu’s settlement offer!), or such an innocuous operation as deleting a browser cookie might result in sanctions.
But that’s not all. The most egregious is the last paragraph:
Defendant is also ordered to provide Plaintiff of a complete inventory of all Hard Drives and third party cloud storage services in Defendant’s possession, custody, or control.
This is nothing else but a discovery order issued prior to the Rule 26(f) conference. And that runs afoul of the Rule 26(d):
(d) TIMING AND SEQUENCE OF DISCOVERY.
(1) Timing. A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.
(2) Sequence. Unless, on motion, the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice:
(A) methods of discovery may be used in any sequence; and
(B) discovery by one party does not require any other party to delay its discovery.
Both conferring requirement and, more importantly, the motion requirement were ignored. This is mega overreaching. Arguably, the early discovery order exempts Malibu Media from the conferring requirement, but it is a stretch. In any case, such an Order has to be motioned: an answer has to have been filed (issue joined), so a Doe Defender can oppose such a motion for interrogatories.
In any case, this is inherently unfair. The order was issued when the Doe didn’t have a notice about a lawsuit filed against him yet, so he could violate it before even knowing it. Franz Kafka is rolling in his grave.
It is fair to note that at least one judge (or his clerk) paid attention to what was submitted via a back door: Judge Karas removed the offending paragraph before signing:
At this moment I don’t have time and energy to enumerate all the cases, in which this poisonous order was injected, maybe I will post an update tomorrow.
Shame to the judges and law clerks for signing this overreach, brazen orders. Shame… well, I almost automatically wrote “…to Lipscomb and James,” but stopped short: it would assume these guys have a quantum of dignity. They don’t.
Thanks to Raul and the community for contributing ideas/research/explanations for this post.
Update
2/27/2016
A very similar attempt to smuggle an overreach preservation order took place in Maryland. There, Judge Theodore Chuang shot down this attempt at once on 2/11/2016 (emphasis is mine):
In its Response to the Motion to Quash, Malibu Media also seeks a Preservation Order “to prevent the destruction, expiration, deletion, overwriting, concealment, or modification (even if such data would otherwise expire, be deleted or overwritten, concealed, or modified in the normal course of business, including through the termination of user accounts) of Electronically Stored Information … reasonably related to this litigation in Defendant’s possession, custody, or control.” […] There is, however, no need for such an order because Doe is already under a duty to preserve material evidence. […] This duty “arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” Having received a subpoena, Doe should now be aware that evidence in his possession may be relevant to this litigation and must therefore preserve it. See Malibu Media, LLC v. Harrison, […] (S.D. Ind. Dec. 24, 2014) (finding that a letter from Comcast stating that “You have been identified in our records … for allegedly infringing Malibu Media, LLC’s copyrights” was “sufficient to establish Defendant’s duty to preserve evidence”). Therefore, the Court will not issue a preservation order at this time but informs Doe of this duty.
Fight © Trolls 
I would be of the opinion that this is a Troll Central Fatwa to put these in with the filings and hope that it is missed and the court will just rubber stamp this. This really is a violation of privacy in my opinion, and I would be surprised if the EFF doesn’t start shaking the no-no finger at the trolls for this one.
One would believe that the trolls are hoping to use this as an advantage to advance their claims of Spoliation / Destruction of evidence claims that we see anytime the trolls can not find any infringing files of their clients on the poor victims computer or other electronic devices.
We have seen the trolls trot out that claim over and over and over again, and most of the time the courts are not buying it despite the trolls emphatically saying their evidence is proof so that it must be so. Being that the trolls are either mistaken or every defendant has conspired against them to destroy evidence of infringement, I believe this is another tactic so they can claim Spoliation / willful destroying the evidence.
The Trolls want to be able to say this order was present to defendant so they didn’t destroy evidence before we examined it, and look they turned on their computer or cleaned up their files with cc cleaner, so they obviously were violating, so Judge you must find for the plaintiff. This would be the trolls once again trying to rig the game so they win anyway they can.
I would be of the opinion that all the cases where no evidence was found and the trolls could be on the hook for costs has someone in Florida awake at night, and someone has been hard at work thinking how can I gain an advantage, and thus this little brainchild was farted out.
Honestly I don’t see Judges allowing the trolls to get this in ( unless of course you get the trolls favorite jurisdictions where Judges like the rubber stamp ) The fact that the trolls are asking the court to approve this before a defendant has even been identified is just smacking of desperation to avoid the amount of cases where the trolls are in deep against a defendant and his counsel and to gain an unfair edge.
The privacy concerns alone should make any Judges hair stand up on the back of their neck and should make privacy advocates eyes jump out of their head, this in my mind is grossly overboard and bordering on paranoia.
We have seen the trolls try all sorts of tactics to gain an advantage from notifying the neighbors, subpoenaing the neighbors, asking for cell phones, and i cloud access, to naming a different infringer when the first one was no where near where the alleged infringement occurred, to the naming of files that where downloaded that were not the troll clients works, to suing those who are financially challenged or disabled physically or mentally, this is just another tactic to get the game tilted in their favor.
If you ever have wondered when we have reached the low point in the trolls litigation strategy, well guess what ***Ding, Ding, Ding*** We have a new winner. The sad thing is, you know they will go out of their way to go even lower again at some point.
Completely unenforceable. Laughable actually, except for the small bizarrely perverted wet-dream value some Lipscomb-associated dumbass might see in it. A good lawyer for any victim of these extortion trolls would have a field-day with this one, since this order cannot be served on anyone presently, as that defendant is not known and therefore certainly not represented by counsel at this point of the process, and defendant cannot possible be aware of such an order until a much later date. The above references to Rule 26 are spot on.
Most likely outcome is, even given that it was signed by some less-than-fully-awake judge, that the same judge, when presented with a decent motion from a defense lawyer regarding this disgusting, deceitful, and unethical activity by plaintiff, will reverse himself or herself and not allow any action on spoliation later based on this order. That decision would be fully appropriate, where a judge finds that he/she has allowed an action that is so blatantly in violation of Court Rules (and common sense and common decency I might add). The judge would have to know that any outcome/finding in this case would highly likely result in a reversal at an Appeal level. If it got there, may even get an Appeal panel to rule and throw out any and all evidence that was obtained based on this order. No judge wants to look that stupid to his/her peers, or to an Appeals Court panel.
Instead of spoliation payout possibilities, a fully competent judge could find that this latest buffoonery results in all electronic ‘evidence’ from the defendant being ruled as inadmissible as a result of how it was obtained. At the very least, an appropriate ruling would be that no action by the defendant prior to being actually served (and therefore being actually aware of a pending action) would be admissible.
This seems more of a harassment to get early settlement. If Lipscomb / Malibu Media actually had any evidence, they would be going to trial, not needing all this discovery to try to find evidence to make a case. So perhaps an act of God, such as lightning destroyed my hard drive is good defense. I doubt anyone, unless they are really stupid would ever turn over hard drives that has their files. Lipscomb threatens will all sort of nonsense. He isn’t going to trial ever because it would likely end he business model.
Keith Lipscomb during the deposition of Delvan Neville:
I would like to see the entire Delvan deposition, instead of just the hand picked one page that MM attached as an exhibit to pretend that their evidence was worth something. Since the entire thing hasn’t been filed with the court at least not of yet, we can’t get it on pacer.
Anyone out there have a connection with the defense that can get the entire thing and post it????
I would be genuinely curious how Malibu Media and the trolls would respond to someone that doesn’t use a hard drive in their computer. For example Tails Linux, runs off flash memory and doesn’t write information to a hard drive. A person using Tails or a LiveCD distribution of Linux or even some versions of windows, wouldn’t have any hard date to share with the trolls or the courts.
Just thinking of something like HiREN, which is designed to boot off of DVD and live in RAM. Put enough RAM on the machine, and you could run torrent downloads to your heart’s content. Turn off the computer, and poof, all the torrent files, file fragments, and other breadcrumbs disappear. It’s RAM, after all.
Not that I’d ever do that, or course. I’m really not interested in their illegally filmed porn with airbrushed college students manipulated to look like jailbait. It’s the corrosion on the soul that’s the danger here, not downloading something that they’ve deliberately seeded themselves.
Still, I’d love to do it as a test case. You know, like lawyers trying to expose a bad law go looking for a ‘test case’. That’s my lottery dream–to afford to pay the good lawyers to absolutely dot every I and cross every T, force a jury trial, then take them to the cleaners. Ahhhh.
so what does it take to get the EFF notified and interested in representing the common good against these extortionists on this stuff? SJD? DTD? Anyone?
I’d certainly be willing to help inform them or request help. Sorry no funds as out of job right now, but plenty of time. Respond please on how if you know. Don’t know if the more the merrier. Maybe EFF responds to amount of requested help. Please let us know.
EFF is notified, and they are surely interested, but we live in a real world with real restrictions. And they are:
1. Bandwidth and priorities: EFF people are busy, and recently more with the government overreach stuff. And no, they won’t entertain a targeted donation unless it is a HUGE amount of money (like Mark Cuban giving 1/2 million to Julie Samuels to fight patent trolls).
2. Policy of winning: EFF won’t fight uphill battles (except few of the highest priority). This is a reasonable policy: reputation grows with wins, and future wins are contingent on reputation.
In this case, I think this is a slam duck case (yet it is only my opinion), so #2 is not a concern. But #1 is.