Brief history of the case

Lipscomb and his Midwestern pawn Paul Nicoletti filed the Malibu Media, LLC v. John Doe (INSD 1:13-cv-00205) lawsuit on 2/5/2013. The complaint was accompanied by an infamous and scandalous “Exhibit C,” a disgusting practice, for which the trolls were sanctioned in Wisconsin twice. According to Lipscomb, such exhibit (now striken from the record) was meant to demonstrate that the Doe is a habitual Bittorent user, who infringes upon a lot of other copyrighted stuff: music, software, other pornography. In reality, this “extended surveillance” proves nothing. As a Florida judge recently ruled in another Lipscomb’s/XArt’s case,

[…] Even if this IP address is located within a residence, the geolocation software cannot identify who has access to that residence’s computer and who would actually be using it to infringe Plaintiff’s copyright. The Court finds that Plaintiff has not established good cause for the Court to reasonably rely on Plaintiff’s usage of geolocation to establish the identity of the Defendant.

The only goal of this practice is to intimidate a defendant and coerce a settlement notwithstanding that the Doe may be completely innocent.

As in almost all the trolling cases, the discovery was granted, and the shakedown ensued. It is worth noting that on 2/15 Judge Dinsmore, to whom this case had been reassigned, expressed a concern regarding trolls’ practices:

The Court has become aware of several court opinions from across the country that have raised concerns regarding potentially inappropriate procedures being utilized by plaintiffs in cases similar to the instant case to extract settlements from putative defendants without any intention by the Plaintiff of ever actually litigating the case on its merits […].

One unsettling fact is the short time between the order granting ex parte discovery (subpoena to Tashiro’s ISP) and the first indication that Nicoletti learned Tashiro’s identity: only nine days. Most likely, Tashiro, having learned about the subpoena from her ISP, called the troll (a very bad idea: under no circumstances should one talk to shakedown artists without an attorney).

The defendant was named in an amended complaint on 4/8/2013, and in May she hired a Peoria attorney Jonathan Phillips. A very good choice.

Many interesting events took place in this case (see the docket), but, in order not to abuse reader’s patience, I’ll fast forward to the main subject of today’s post.

Full Prenda and accusations in spoliation of evidence

Patrick Paige

On 2/13/2014 Nicoletti filed an unopposed (this one is a charade to me) motion to deposit not only Tashiro’s husband, but four neighbors “[to] eliminate[e] all doubt that the infringement took place outside of Defendant’s home.” I can’t help drawing bold parallels with Prenda’s conduct.

A day earlier Nicoletti filed a motion for sanctions against the defendant, accusing her of spoliation of evidence. This accusation was based on Patrick Paige’s (Lipscomb’s expert) findings:

See Declaration of Patrick Paige (“Paige”), Exhibit A […] His examination revealed evidence of extensive BitTorrent use. Id. Defendant deleted numerous files and folders associated with BitTorrent use. The deletions occurred on December 22, 2013 at approximately 10:00 pm. That was the night before the hard drives were turned over to Quantum Discovery for imaging. Id. Mr. Paige recovered seventy-three (73) deleted BitTorrent files. Many of them are associated with adult movies. Id. BitTorrent clients, that enable the BitTorrent protocol to work, were also deleted. Id. One hundred seven (107) files and folders were also deleted on December 22, 2013 at 10:00 pm. Most of these were parent folders containing thousands of files. According to Mr. Paige, copies of Malibu Media’s movies could have been in these folders. Undersigned will take it a step further: the files were likely in these folders and that is likely why they were deleted.

(By the way, Nicoletti conveniently “forgot” to file the Exhibit A.)

As an IT professional, I immediately smelled bullshit. Assuming that Tashiro used Windows, her file system was NTFS. File descriptors in NTFS are stored in a flat table, and deleting a folder prompts the system to go over these entries and mark all the files from that folder as deleted, one by one — just like it would be the case if each file was deleted separately. Consequently, whether a file is deleted directly, or as a part of a folder — does not matter: these files are equal from any recovery program’s point of view.

Also, phrases like “could have been” are unacceptable when making such serious accusations. This phrase alone should have raised a red flag: when there is no lint of evidence that Plaintiff’s files had ever been on the dive, all this “expertise” is merely a pounding on the table.

Fortunately, defense did not miss these points either.

Moreover, the defendant hired Delvan Neville (no introduction necessary) to conduct her own forensic analysis.

The implication of the findings was unambiguous: Lipscomb, Nicoletti and Patrick Paige are full of shit. Phillips filed a powerful opposition on 3/28/2014, thoroughly explaining why:

Malibu wholly relies upon an incompetent declaration based on a less than full analysis of Tashiro’s turned-over hard drives. Incredibly, Malibu has filed its Motion without a single iota of evidence that Kelley Tashiro that knew of, or did, anything. […] In a desperate attempt to salvage a case it has no evidence to support, Malibu has failed to provide any reason to believe that Tashiro has committed perjury. Further, Mr. Paige’s affidavit is not only without support, it is incontrovertibly based upon a half-done analysis, that when fully performed, shows all files are still present, no attempts at “wiping” were made, and no evidence was actually spoliated.

And here is Exhibit A — Declaration of Delvan Neville:

Other exhibits:

Conclusion

We know only a few Malibu Media cases where innocent defendants fought nail and tooth for their good names. But how many silently settled because of a reasonable fear of inevitable reputational damages? Lipscomb and his “plaintiff” (who thinks that the law is something that is served a la carte) assaulted numerous families just because they could, all based on information provided by an unlicensed, improperly compensated foreign IP harvester (IPP International) of a questionable expertise¹, and an “expert” (Patrick Paige), who would likely benefit from reading “Computers for Dummies.”

Although I respect defendants’ desire to regain privacy that trolls have rudely violated, I really hope that a couple of these cases will find their way to real jury trials, not something like the Bellwether farce — a prospect Lipscomb and his clique are terrified of.

¹ I’m aware of one Malibu Media case where their expert found nothing on the defendant’s drive, and the settlement offer went from $7,500 to a walk-away, which the defendant accepted. Too much for the “impeccable technology”!.