Sometimes you need to be a bully to beat a bully.

James McGibney

Reading Malibu Media’s motion to compel the defendant to answer interrogatory questions (Malibu Media v. Jason Pontello, MIED 13-cv-12197, troll Paul Nicoletti), I noticed a couple of obnoxious questions that the defendant understandably refused to answer:

Plaintiff’s Interrogatory No. 22: Have you or anyone who has had access to a wireless router(s) or modem(s) in your home visited an adult website within the last two years? If so, identify the websites and state how often those websites were visited. Defendant’s Response: Defendant objects to the nature of this interrogatory in that it is not related to the instant action, is overly broad, vague, unduly burdensome, and part of a calculated strategy intended to threaten Defendant with an intrusive invasion of unrelated personal information as retaliation for his failure to submit to Plaintiff’s extortion tactics. The nature of the request is deliberately calculated to elicit information by which Plaintiff can then use to embarrass him as a viewer of pornography in order to facilitate a coercive and/or extortionate settlement or demand. Accordingly, no response is warranted. Plaintiff’s Interrogatory No. 23: Have you ever watched x-rated, adult or pornographic movies or live feeds (collectively, “adult content”)? If so, when was the last time you watched adult content, how often do you watch adult content, which studios do you prefer, and what type of movies do you prefer? Defendant’s Response: [same as 22] Plaintiff’s Interrogatory No. 24: Have you ever subscribed to an internet company distributing adult content? If so, identify the company and state the period of time that you were a subscriber. Defendant’s Response: [same as 22]

The defendant (represented by attorney John Hermann) is right, and I hope that the judge will deny this motion. If the defendant is compelled to answer these questions, I have no doubt that Lipscomb/Nicoletti will not hesitate to further invade their victims’ privacy by asking such questions as “How often do you masturbate? If so, what are your fantasies: do they involve very young girls? ” Or “Are you a gay? If so, explicitly specify if you are an open or a closeted gay.”

Plaintiff’s requests improperly seek information regarding Defendant’s internet setup, computer setup, and internet habits.

Plaintiff’s inquiry into Defendant’s personal computer usage and internet setup does not relate to any relevant issue or fact. Such requests have no bearing on Plaintiff’s allegations. Inquiries into patently irrelevant facts demonstrate Plaintiff’s counsel’s flagrant attempt to harass and annoy Defendant.

Stop, stop, stop. Did I write these two paragraphs? Of course not! I simply lifted these passages from the plaintiff’s motion for protective order limiting discovery (Malibu Media v. Jeremiah Benson, COD 13-cv-02394, troll Jason Kotzker), which sought to shield X-Art’s owners Colette and Brigham from the defendant’s “frivolous” questions compiled by attorney David Kerr. I only replaced “Plaintiff” by “Defendant” and vice versa, and made very minor alterations. Here is the original:

While I admit that the set of requests for production of documents / interrogatories / requests for admission (embedded below) is very aggressive (which may be counter-productive), the majority of the questions is up to the point, and if answered truthfully by the plaintiff, would bring its dirty copyright shakedown business to the brink of collapse (which will happen anyway rather soon).

It is both ironic and boring to observe a typical reaction of a bully being bullied: a fake “toughie” cries “Mommy!” when being seriously confronted.

It is no surprise that in order to avoid answering the questions on paper and during an inevitable deposition of our porno couple, Malibu agreed to settle this case pending a polygraph test (which is a travesty in my opinion; however, if for the sake of argument we assume that such tests are not a total hogwash, I’d like to see Brigham and Colette undergo the same procedure: they are the paragons of truthfulness, hence they have nothing to fear, right?).

In any case, the list of questions remains in the annals as a nice template for pro se defendants in Malibu cases. My advice though is not to fight Malibu on your own, especially if you are innocent: the tables are turning quickly, and you have a chance to win, including monetarily. But for this you need an experienced attorney.

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