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.

Coverage

Followup