As a Malibu Media docket grows longer, the probability of accusing defendant of evidence spoliation or perjury approaches 1.|
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.
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.