Guardaley | X-Art

New York judge stayed subpoenas in all the Malibu Media NYED cases

This good news was broken by Ray Beckerman:

A motion to quash was made by one of the many John Doe defendants in the Eastern District of New York Malibu Media cases. The defendant was represented by Chejin Park, Esq., of Flushing. Due to the “serious questions as to whether good cause exists in these actions to permit … expedited pre-answer discovery”, the Court, by Magistrate Judge Steven I. Locke, before whom all of the Eastern District cases are consolidated, decided to stay all pre-answer discovery until his determination of the motion to quash.

Malibu Media, via a local Jacqueline M. James, filed 88 cases in NYED (all of them in 2015). Subpoenas to ISPs are stayed in those cases where the troll hadn’t already received Does’ names.

(While the order below lists only 20 cases, this order is accompanied by similar orders.)

 

Here is the motion to quash that triggered this order. It is good:

 

On the other side of the continent, in CAND, all the Malibu Media cases were recently consolidated before a single judge — William Alsup. We are closely watching developments there.

Coverage

Updates

10/29/2015

On 10/27/2015 the Miami Troll Center scrambled and opposed this motion to quash. It is full of usual hogwash: tearful story of a poor pornographer Colette, John Steele’s argument that the defendant doesn’t have standing to quash, characterizing the Bellwether Settlement Conference as a win in “the first ever BitTorrent copyright infringement trial,” ans so on. Yet the most hilarious is the claim that

On September 28, 2015, Defendant moved to quash the subpoena. Defendant’s Motion is riddled with factual misstatements, relies upon inapposite authority, and fails to assert a legally cognizable reason to quash a subpoena under Rule 45.

Given that the motion to quash in question is largely copied from the Judge Hellerstein’s order verbatim, I’m curious why the troll didn’t choose to confront the judge directly 4 months ago and simply cut the loss? This question is rhetorical: losing the NYED battle would be a devastating blow to Lipscomb’s shakedown business. Thus, alle Mann an Deck and anything goes.

11/19/2015

On 11/17 the defense responded to the opposition, thoroughly debunking each and every Malibu’s misinterpretation:

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Discussion

18 responses to ‘New York judge stayed subpoenas in all the Malibu Media NYED cases

  1. I just read the lawyer’s motion to quash. 3/4 of it lifts right out of Judge Hellerstein’s (SDNY) opinion from over the summer, without citation. I don’t know if that’s improper or what, but it’s definitely ironic in a copyright infringement case…

    • Indeed. I was wondering why an attorney who we never met before, and who doesn’t even have a website, came out with a motion that good 🙂

    • It was a 4/20 evidentiary hearing, which resulted in the following:

      Other: For the reasons set forth on the record, Defendant’s motion in limine, DE [28], is denied. Evidentiary hearing held. Witnesses sworn and exhibits entered. Evidentiary hearing concluded. On or before April 27, 2016, the parties shall submit a letter to the Court proposing a date by which they will file their post-hearing submissions.

      Malibu obliged:

      We represent Plaintiff Malibu, in the above matter and Mr. Park represents the defendant in this matter. Plaintiff’s counsel and Mr. Park jointly write to inform the court we have paid the transcript fee and expect the transcript shortly (by early next week). Counsel jointly request three week from the date we receive the transcript to file post hearing briefs, we will, if requested, notify the court when the transcript is received.

      Plaintiff further notifies the court, as it has Mr. Park, it may supplement Mr. Michael Patzer’s declaration briefly to dismiss the suggestion that a proxy server may have been used in this case, an issue raised by Mr. Park on cross for the first time at the April 20,2016 hearing. Counsel is discussing this issue and will report back to the court if necessary on this.

      These are the latest events I’m aware of.

  2. Does anyone know the outcome of the motion? I can see there has been some action on PACER but of course I dont subscribe

    • I’m not aware of a decision, and it is unlikely I would miss it. There was an evidentiary hearing in April, and recently there were a couple of back-and-for motions, but that’s it. A story about the evidentaiary hearing is in my pipeline.

  3. Interesting that these cases are still ongoing with the new revelation of Malibu vs Lipscomb. I wonder if the local cronies of Lipscomb are going to bail out of these cases.

  4. Looks like the motion to quash and protective order have been denied! To add insult to injury it looks like the defendants can only litigate anonymously through the close of discovery??

    • I’m aware of the developments, but currently overwhelmed with other stuff to write an update, I will. This is infuriating, given the fact that during the April hearing the Germans acknowledged that they don’t have any evidence beyond a couple of 27 KB data chunks (less than a movie frame each). This is the case where advocacy organizations (EFF, Public Citizen etc.) should have intervened. The defence attorney tried diligently, yet IMO an advocate of a higher caliber was needed to debunk Malibu’s cockamamie “evidence.”

  5. Its interesting that the cases that were awaiting the decision on 2:15-cv-03504 are all mixed. For instance, 2:15-cv-03488 has been extended? Yet cases like 2:15-cv-03498 have been dismissed?

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