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Yet another New York judge is not happy about Malibu Media’s predatory conduct

Judge Katherine Forrest is the most recent addition to those of her colleagues who scolded copyright trolls one way or another. The list is impressive: judges McMahon, Hellerstein, Marrero, Baer, Brown, Fox… The only way for a troll lawyer to still hustle in this state is to secure his or her reputation six feet under.

I wrote about this case ten days ago (Malibu Media v. John Doe, NYSD 14-cv-10155). To recap, a defense attorney filed a motion for protective order telling a disturbing story, in which essentially an attempted blackmail was incorrectly referred to as “deposition”:

While Doe is cognizant of Malibu’s ostensible desire to conduct thorough discovery, it has become apparent that, in the absence of any evidence of infringement on Doe’s part, Malibu is conducting a fishing expedition and campaign of harassment by threatening to depose non- party witnesses on irrelevant topics and to continue to depose Doe on same. In so doing, Malibu is attempting to prevent ultimate resolution in this matter by creating the false sense that evidence of infringement or wrongdoing exists.

Of course this provoked Keith Lipscomb into producing fountains of saliva. Ostensibly written by a local troll Jacqueline M. James, but obviously drafted by the Troll Master himself (the usage of certain typical words and phrases leaves little doubt), the reply in opposition was frantic.

And it was also disgusting. Anger is a dangerous beast: it is hard to keep it tamed. It is easy to make mistakes and say something regrettable when angry. This happened in Pelizzo, where angry Lipscomb, 100% knowing that the defendant was innocent, threatened to ruin him financially. The motion in question was not that bad, but still I think that the troll didn’t realize that including the following would backfire (emphasis is mine):

Because Defendant denies being the infringer, Defendant’s assertions indicate that he believes that one of his neighbors could have committed the infringement using his IP address. In order to ascertain whether or not it is plausible or even possible for one of Defendant’s neighbors to have committed the infringement instead of Defendant, it is necessary for Plaintiff to depose them. Deposing Defendant’s neighbors goes to the heart of one of Defendant’s defenses. As such, the depositions are appropriate and necessary. Significantly, Plaintiff informed Defendant via e-mail on September 3, 2015 of the same and noted that if he would stipulate that none of his neighbors committed the infringement, Plaintiff would not need to depose them. Defendant would not so stipulate.

If this is not the very definition of blackmail, I don’t know what to say. Stripping Legalese from this paragraph, we are left with “Either you admit and pay up, or we tell your neighbors that you are accused of sharing barely legal pornography.”

Apparently, the judge didn’t buy the troll’s explanation: requested the deposition transcript immediately, and today she ruled in favor of the defendant (emphasis and strong words are original):

Protective order granted. Plaintiff may not subpoena neighbors or Defendant’s significant other based on the current record. As to the neighbors, Plaintiff would be engaged in a fishing expedition and/or harassment of defendant (by way of causing embarrassment/humiliation).

The issue in this is [sic] case is did this defendant download Plaintiff’s works — not anyone living in the apartments nearby.

As to Defendant’s significant other, the Court has read the transcript of the deposition. The testimony is that any use of this woman was on Defendant’ computer. There is no evidence that the computer has or had any of Plaintiff’s copyrighted works that I can see — thus, whether the girlfriend used the computer is irrelevant.

If there is a forensic report / evidence suggesting deletion (or other admissible evidence), the issue of the girlfriend / significant other may be revisited (depending on possible time/date of deletions). At this point, this deposition appears to be harassment and at least outweighed by such considerations.

The continued deposition of defendant is disallowed. The depositions went on long enough. The court notes the last series of questions were entirely irrelevant.

K.B. Forrest, USDJ 9/14/15

 

It didn’t take long for the troll to reply with more histrionics, claiming that (surprise!) “forensic examiner has discovered that Defendant used military grade computer wiping software” and that “The extent of the destruction of evidence is massive.”

Well, I of course cannot claim that spoliation didn’t take place — I’m not the defendant’s confident. However, given the hyped language (“military grade”: what the hell does it mean in this context?), Malibu’s expert’s reputation (I don’t even mention this digital guru’s inability to detect “massive destruction” during the first pass), and almost boring predictability of the move, I won’t be surprised if it turns out to be yet another massive bluff.

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23 responses to ‘Yet another New York judge is not happy about Malibu Media’s predatory conduct

  1. One would be interested to know what tool can fully retrieve overwritten files.
    Military grade wiping involves overwriting the area…
    https://en.wikipedia.org/wiki/Data_erasure#Standards
    huh…
    https://en.wikipedia.org/wiki/Data_erasure#Number_of_overwrites_needed
    So this amazing tool, would be a massive boon to the world.

    Or are we just going to play games saying we found this list of things, but we won’t mention what kind of files they were just some words.

    Or did they just happen to find 1 of several mainstream programs that offer wiping options along side their primary use and let conjecture and imagination take hold.

    I’m guessing the latter as these cases are all built on the blink of an eye recording of data moving, and are then presented as being much more.
    Sort of like holding a bolt, and saying that you own a Mercedes.

    • I do hope the Judge demands the evidence before allowing them to dismiss and run.
      It was MM that claimed that presence of CClearer was proof of wrongdoing wasn’t it?

  2. Military Grade: Over-write the disk 10 or more times with random numbers, and don’t forget that Windoesn’t remembers a lot of things in funny places, so you probably want to boot off something else first.
    If you want to go further, disassemble the drive and apply sandpaper or sandblasting. NONE of this is exactly difficult; I’ve done it before.

    Where, exactly, *IS* that expert report, anyway??? I bet it is still awaiting fabrication from whole cloth.

  3. Well it’s nice to see Malibu has reached the Prenda level in their tactics. The military grade wiping in my opinion is nothing more than a dodge to avoid the fact that there were no X-Art crappy movie titles found.

    Being that Malibu has had the “none of malibu media titles were found ” on defendants electronic devices come up more and more frequent in some of their cases, I suspect we will see the “Military Grade Wiping ” claim come up more and more.

    I am sure more and more Doe’s and their lawyers are aware of Malibu’s litigation strategy and the spoliation claims, but when no evidence is found of Malibu titles that is a serious problem for the trolls. The trolls are not going to get out of some of these cases lightly and it is my opinion the trolls are trying to avoid fee awards like Lamberson was awarded.

    I suspect the “Military Grade” claim will come up more and more, after all we know the judges weren’t very keen on the ” additional evidence ” claim they were trying to put forward, so I believe we are seeing their alternative to help their cause.

    I liken this move to desperation, the trolls are having a harder and harder time getting settlements due to the media attention that Malibu is starting to generate and of course we all know the trolls are addicted to that easy cash.

    Much like the Prenda gang has found getting addicted to the lure of easy cash can be bad for you, soon they just may wish they had stuck to chasing ambulances

  4. It will be interesting to see what this “Military Grade Wiping” turns out to be. I hope that it is something that can be explained in such a way as to make MM, et all look like idiots instead of being actual Spoliation. I find it hard to believe that there was something that left enough evidence for them to narrow it down to the day that the act occurred, that wasn’t easy enough to detect that an expert should have found it on their first pass.

    • Military grade wiping means they could not find a trace of what they were looking for. There is only one explanation of that, of course.

      At any rate, this kind of wiping leaves no remaining magnetic traces for uncovery with special reading heads. To make this claim with reliability, they’d need very special very expensive hardware and clean rooms.

      • I assumed that rather than getting any evidence from a “erased” sector, that they found some reference to the program running in one of the many Windows obscure areas.

        Like I said that is an assumption. I know there are programs that will run from a boot CD/USB drive as well that would not leave those type of traces laying around.

        • At least on a standard drive, a wiping program leaves unmistakable evidence of having been used regardless of where it was run from. A deleted sector should contain a recognizable piece of the file that was most recently stored there. After being wiped it would contain all 0s, or all 1s, or alternating, or random garbage, but in any case not a recognizable piece of file.

          I’m unsure of what you’d see on a SSD with TRIM enabled. I know that deleted data is truly gone as soon as TRIM garbage collection occurs, but I don’t know if the free space afterwards can be distinguished from that written over with a wiping utility.

        • My point was those erased sectors may leave evidence that a wiping program was used. They don’t leave evidence of “When” the program was used. That has to come from some other location on the drive, and wouldn’t exist if the program was ran from a bootable CD or USB stick.

  5. Superficially this looks really bad, but besides the fact that they leaked Doe’s name, they clearly have at least part of their analysis wrong since the Asus deletion program came bundled on Doe’s laptop (it came on both my asus too)… The declaration said that there is no evidence the Asus secure delete program didn’t exist before the date he supposedly cleared his hard drive. Also, by default, this program runs as a service on startup, so this would run every time the computer was on. The Asus Secure delete program is incredibly opaque, so I wouldn’t be surprised if any (or all) of the other utilities were packaged with it and the Asus program is just a branded manager.

    Also, the screenshot that purports to show the BC Wipe remaining registry entries does not actually show that. It is simply a Windows event log that says the BC Wipe service was running – without showing the timestamp and details from that event.

    The connected drives list is just as innocuous – if I were going to have my disk imaged, you can bet your ass I would go out and buy an external to dump all of my stuff onto in case they messed something up or held onto the physical device. IDK what they are talking about with the Kindle since if he connected it to the computer, it would have shown up in the drives list just like his iPod did…

    I would really like to see what a reputable forensic examiner finds on this drive… Their analysis about the Asus Secure Delete program is way off and without more information about what services it uses behind the scenes, I am not going to jump to any conclusions – especially when they leaked the Doe’s name (of course, I am sure it was totally inadvertent…).

    If they imaged my laptop, I can only imagine how bad the motion for sanctions would look since I run full disk + home folder encryption on ubuntu, everything is shredded when it is deleted automatically, and the system/kernel/etc logs and temp folders are mounted as a temporary filesystem that is cleared every time I log off… I bet I would get called a spy and/or criminal in their motion for sanctions…

    • Another thing that stands out is inappropriate legal conclusions made by a purported expert. His fucking job is to state the facts and not to speculate that “it is apparent that Defendant attempted to defraud Plaintiff and the Court by destroying material evidence and I believe Defendant did so because he is likely the infringer.”

  6. It looks like we may not have any good information about the spoliation claims until December. A evidentiary hearing on the issue has been tentatively set for Dec 11th.

    • Yes, I saw that. I plan an update. Will post the redacted report today to discuss (it was striken in Pacer and pulled from archive.org after I contacted defendant’s attorneys).

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