Guardaley | X-Art

Malibu Media’s obstruction of discovery prompts a powerful motion for default judgment

Guardaley | Lipscomb | X-Art wants every one of its cases to be as simple as this: threaten a defendant with the prospect of telling neighbors about the accusations of pirating “barely legal” pornography; scare him or her into submission by pointing to insanely high statutory damages; lie about the plaintiff’s possession of “impeccable evidence,” which renders any resistance futile; and, as a result, wrestle a quick settlement.

Depressingly, this strategy works, and works well, resulting in millions of dollars in ill-gained profit. Yet sometimes a defendant is tougher than the trolls want him or her to be, hires a competent counsel and fights back.

In such cases the trolls either cut and run, or, if they still believe in a possibility of extracting a ransom, continue harassing the defendant as if the plaintiff seriously intends to bring the case all the way to trial. Preserving the smokescreen of legitimacy by all means possible is critical to sustain the “business”: if defendants across the country realize that the best word that describes Malibu’s strategy is “bluff,” the time of trolls’ demise will be shorter than the final scene that follows the “money shot” in X-Art’s flicks. It is never an easy task to maintain the appearance of good faith after a defendant asks for the evidence that backs up the accusations: because it is never an easy task to deliver something, the existence of which is questionable (to put it mildly). Hence, the obstruction of discovery.


Malibu Media v David Ricupero (OHND 14-cv-00821) is one of cases where the defendant didn’t succumb to threats and decided to fight for his good name. No X-Art’s pornography was found on defendant’s devices by Malibu’s “expert” Patrick Paige, no evidence of spoliation, nothing. So the defendant wanted to know why he was targeted, and he asked simple questions, to which he didn’t get satisfactory answers.

As you will read below, the lengths our trolls go to prevent the defendant from learning why he had been sued in the first place are worthy of Kafka’s quill.

That’s how attorney Jason Sweet begins today’s motion for default judgement:

Plaintiff Malibu Media LLC refused to produce the only probative evidence it claimed would support liability. When ordered to produce the evidence Malibu Media denied any order had issued. After discovery closed Malibu Media represented that it is contractually prohibited from obtaining and producing the evidence. Malibu Media compounded its intentional failure to meet its discovery obligations with a cascade of belated requests for extensions, unequivocally false statements to the Court and Defendant David Ricupero, and other dilatory and obstructive tactics. While forced to incur costs in his defense, Ricupero was irreparably prejudiced by Malibu Media’s unmitigated failure to provide him with the facts behind this action. He therefore requests the sanction of dismissal with prejudice.


Writing about Jason’s motions is always a challenge: it is difficult to tell in my own words what is already described with astonishing precision. If I decided to write this post in my usual comment-and-quote style, I would end up quoting 80% of the motion text. So I just leave it here. Read, enjoy, and if you are a defendant in a similar case, become empowered to strike back and win. It is easier and much less scarier that it appears at the beginning.

Affidavit of Jason Sweet;

Exhibits:

  • Exhibit A: Ricupero’s first set of interrogatories (February 21, 2015);
  • Exhibit B: Ricupero’s first set of document production requests (February 21, 2015);
  • Exhibit C: Ricupero’s first set of requests for admissions (February 21, 2015);
  • Exhibit D: MySQL log that Malibu Media produced to Ricupero on May 28, 2015 in response to one of his requests for document production. The log was missing several columns of information;
  • Exhibit E: Malibu Media’s responses to Ricupero’s first set of interrogatories (February 26, 2015);
  • Exhibit F: Malibu Media’s responses to Ricupero’s first set of document production (February 26, 2015);
  • Exhibit G: Malibu Media’s responses to Ricupero’s first set of requests for admissions (February 26, 2015);
  • Exhibit H: Email from Jason Sweet to to Malibu Media (March 17, 2015);
  • Exhibit I: Email from Jason Sweet to Malibu Media’s counsel Yousef Faroniya (July 16, 2015) and Faroniya’s response (July 20, 2015);
  • Exhibit J: Malibu Media’s reply to Ricupero’s objections to its discovery responses (August 20, 2015);
  • Exhibit K: Email from Jason Sweet to Malibu Media (September 17, 2015);
  • Exhibit L: Email from Jason Sweet to Malibu Media (September 23, 2015): Malibu Media did not respond;
  • Exhibit M: Email exchange between Jason Sweet andand counsel for Malibu Media (October 5, 2015);
  • Exhibit N: Email from Jason Sweet to Malibu Media (October 8, 2015);
  • Exhibit O: Email from Jason Sweet to the court’s clerk, with a copy to Malibu Media (on October 9, 2015);
  • Exhibit P: Email from Malibu Media to Jason Sweet (October 12, 2015);
  • Exhibit Q: Email from Jason Sweet to Malibu Media (October 15, 2015);
  • Exhibit R: Email from Jason Sweet to Malibu Media (October 19, 2015);
  • Exhibit S: Email from Jason Sweet to Malibu Media (November 25, 2015): memorializes Sweet’s conversation with Kennedy that day. Malibu Media did not respond;
  • Exhibit T: Formal discovery request Jason Sweet served upon Malibu Media (January 12, 2016);
  • Exhibit U: Email from Jason Sweet to Malibu Media (February 1, 2016);
  • Exhibit V: Email from Malibu Media to Jason Sweet (February 11, 2016);
  • Exhibit W: Email from Malibu Media to Jason Sweet (January 13, 2016);
  • Exhibit X: Declaration of Norbert Türbach, filed on March 14, 2014 in Malibu Media, LLC v. John Doe (ILND 13-cv-06312, Doc 46-2);
  • Exhibit Y: Memorandum of Malibu Media filed on February 12, 2014 in Malibu Media, LLC v. John Doe (ILND 13-cv-06312, Doc 40);
  • Exhibit Z: Paige’s Supplemental Declaration, which Malibu Media produced on November 5, 2015;
  • Exhibit AA: Incorporation papers filed for IPP and Excipio GmbH as translated into English from the website http://www.unternehmen24.info;
  • Exhibit BB: Declaration of Tobias Feiser filed as Exhibit F on March 21, 2011 in Raw Films Ltd. v. John Does 1-647 (Circuit Court for the 11th Judicial District for Miami-Dade FL No-11-08875CA21);
  • Exhibit CC: Memorandum Opinion and Order by Magistrate Judge Geraldine Soat Brown in Malibu Media, LLC v. John Doe (ILND 13-cv-06312, Doc 180);
  • Exhibit DD: Declaration of Michael Patzer which Malibu Media produced on August 3, 2015;
  • Exhibit EE: Reply Declaration of J. Christopher Lynch, on August 18, 2014 in Elf-Man, LLC v. Lamberson (WAED 13-cv-00395, Doc 95).

Update

3/1/2016

Shortly after the motion, which is the subject of this post, was filed, the defendant filed yet another one — motion for summary judgement:

Malibu has presented no admissible evidence of copyright infringement — no admission of guilt; no witness; no evidence Malibu’s works ever existed on any of Ricupero ’s computer devices; no evidence the infringing BitTorrent client was on his devices; no evidence of spoliation — nothing. Instead, Malibu’s claim rests entirely upon the following fact, construed in a light most favorable to Malibu: Ricupero was identified as the subscriber of the account to which the infringing IP address was assigned.

Exhibits:

Related

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Discussion

20 responses to ‘Malibu Media’s obstruction of discovery prompts a powerful motion for default judgment

  1. “My client does not have that evidence in its possession, custody or control.”

    So the first demand in all MM cases needs to be production of ALL of the evidence. Courts have been far to willing to accept allegations at face value, yet ignoring the evidence is never available.

    Your honor my client was shot by the defendant!
    Well where is the bullet, ballistics report, photos of the wound, other evidence…
    We don’t have that in out possession, custody or control. But we say it happened and here is a picture of a blood drop we saw on the ground.

    How does one file a case without having the evidence?
    One can allege all sorts of things, but without the evidence to support the allegations the bench slap should be epic (not to mention a referral to the state bar).

  2. And here we see the litigation strategy of how when a case is in troubled waters plays out. The trolls parachute in someone else when their local counsel is in my opinion treading water in the deep end of the pool.

    Ford a litigant that likes to thump it’s chest and rattle on and on how they have evidence so rock solid that they will go to trial, it sure doesn’t seem that way if you ask me.

    I would sincerely hope the Judge sticks to what he stated about allowing the defendant to ask for a dismissal and that the Judge does grant the defendant the right to go after the trolls for costs. The trolls have the game very one sided their way, lets hope the loses we have seen lately start to bring their dash for the cash to a screaming halt

    We will have to keep an eye out and see what happens here.

  3. This judge really needs to issue an order to show cause why the plaintiffs should not be subject to Rule 11 sanctions for their discovery shenanigans. Filing a lawsuit based on evidence they claim they are contractually prohibited from supplying seems like it should be an automatic dismissal and sanctions. Well, if courts worked in a reasonable way, that is, and without the ridiculous leeway lawyers seem to be granted to flout the law.

  4. Malibu’s intransigence in this case may not be down to conscious decision.

    Take a read of Exhibit E – linked above, paying particular attention to the names of the plaintiff’s attorneys (last couple or three pages, if you want to get to the salient point). Then take a read of this.

    Not to be unkind, but after reading about that 2014 case and this one, I have to wonder. Is this Yousef Faroniya is even competent to do his job or does he just think that for whatever reason he’s not obligated to do so?

  5. I did a quick check on the web for this Mr. Faroniya. Seems he has four locations, and his law firm is a corporation. I checked on a couple of them via Google Street View. One looks like it might be a UPS store. Note: I said MIGHT. The other one looks like it might – there’s that word again – be an empty building. Whether the law firm is a corporation or not may well be a moot point. On the other hand, it does seem a bit strange.

    Google can be … wrong from time to time, and Street View isn’t completely up to date, I’ll admit. But all the same, I now *really* have to wonder what’s going on.

    @SJD — I don’t know if you have any way of getting in touch with the defendant’s attorney in this case, but if you can, it might not be a bad idea to point him or her at this information. There appears to be some sort of skullduggery going on here, and the defense might be able to make use of that fact.

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