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.
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.
- 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).
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.
- Exhibit A: Email correspondence between Jason Sweet and Malibu;
- Exhibit B: Declaration of Delvan Neville;
- Exhibit C: Expert report of Delvan Neville;
- Exhibit D: Directory;
- Exhibit E: Directory.
- In his 3/5/2016 podcast, DieTrollDie talks about this case in great detail