Elf-Man LLC and The German Investigators – Lamberson Case – # 2:13-cv-00395 (WA)

1 2 Jul 14 Update

Here is a short update on the Elf-Man LLC v. Lamberson, case # 2:13-cv-00395.  On 30 Jun 14, Troll David Lowe (Now the local counsel for Elf-Man) filed an Opposition to Defendant’s Motion to Compel.   Doc_62_00395(WA)   Note: There are three declarations (from Lowe, VanderMay, and Sweeten) that I did not get from PACER due to the cost.  Here are the declarations.   Doc_62-1_Decl_Lowe_00395(WA)   Doc_62-2_Decl_VanderMay_00395(WA)   Doc_62-3_Decl_Sweeten_00395(WA)   The Troll claims Defendant’s motion is nothing but a waste of resources (The Courts & Plaintiffs) and is designed for no other purpose than to drive up litigation costs.  Take a read and try not to laugh – Plaintiff is desperate.  Plaintiff has 4 reason why the motion to compel should be dismissed.

  1. Plaintiff has moved to dismiss with prejudice all claims and unconditionally confirmed that it will not seek to enforce the asserted copyright claims.
  2. Defendant’s motion cannot be heard because there was never a good faith LR 37.1 conference with counsel of record.
  3. Objections were timely served, as confirmed by the certificate of service and testimony of prior attorney of record and legal assistant.
  4. Defendant seek privileged or work product materials that need not be produced under well-established legal authority.

The interesting part of this filing is on the last page, Troll Lowe tells the court that by an “extension” of the attorney-client privilege, the information Defendant seeks from the Anti Piracy Management Company (APMC) LLC and Vision Films, Inc., is protected from Discovery.  Yes, somebody is scared!  It is funny in that trying to prevent disclosure of APMC information, Plaintiff had to admit the company was part of their operation – and thus the information in the slide presentation was given credibility.  

While it is true that prior counsel represented Plaintiff in this case, it is no less true by extension that counsel also represented Plaintiff’s agents, which included its sales agent Vision Films, Inc. and manager APMC LLC. Defendant provides no legal authority mandating that attorney-client privilege is limited solely to parties named in a lawsuit, and such a position would be truly exceptional.

On the same day, Attorney Lynch filed a Joint 37.1(b) Statement.   Doc_61_00395(WA)   In this Statement, Attorney Lynch tells the court that both sides have conferred and tried to resolve their differences, but have been unsuccessful.

On 1 Jul 14, Attorney Lynch filed a Motion to Strike Plaintiff’s Opposition to Defendant’s Motion to Compel.   Doc_63_MTS_00395(WA)   Attorney Lynch tells the court that Plaintiff’s Opposition should be stricken because it was not filed in accordance with Local Rules.  The local rules allow for 14 days to response to non-dispositive motions.  Troll Lowe filed his Opposition 17 days after Defendant Lamberson’s Motion to Compel was filed.  Attorney Lynch tells the court that there was valid excuse for the late filing.  Troll Lowe/Plaintiff had the ability to file their Opposition on the last possible day (27 Jun 14), but simply decided not to.

Plaintiff’s counsel does not appear to have been otherwise detained without access to the Court on the due date of Friday, June 27, 2014, since the plaintiff and its counsel did file Motions for Default Judgment asking for attorneys’ fees on that same date (Case No. 2:13-cv-00126-TOR, ECF No.108 and Case No.2:13-cv-00115-TOR, ECF No. 112).

Here are the document that Troll Lowe was able to file with the court on 27 Jun 14.  He WASN’T too busy to make two motions for default judgements against 11 Defendants in cases 2:13-cv-00115 (Elf-Man LLC) & 2:13-cv-0126 (The Thompsons Film LLC) .   Doc_108_Motion_Default_00126(WA)   Doc_108-1_Decl_Lowe_Default_00126(WA)   Doc_112_Motion_Default_00115(WA)  Doc_112-1_Decl_Lowe_Default_00115(WA)

This sick!!!  The scum-bag Troll (My Opinion) wants $30,000.00 PER defendant, plus fees and costs.  $30K X 7 Elf-Man LLC Defendants = $210,000, AND $30K X 4 The Thompsons Film LLC Defendants = $120,000.  Total of $330K!!! plus fees & costs.  troll/Plaintiff even want so far as to claim they could have asked for $150K, but they were being nice.

The problem Troll/Plaintiff should have is that for both of these cases, Plaintiff claimed (via the complaints) that ALL the defendants were jointly and severally liable.  So reading 17 U.S. Code § 504 – Remedies for infringement: Damages and profits, I’m of the opinion that $150K should be the MAXIMUM damages for ALL the Defendants in each of these cases.  As the Plaintiff only asked for $30K, I hope the award of damages does not even get that high.

(c) Statutory Damages.—

1) Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

Another point is there is case-law that would allow the amount of settlements received (in this case and possibly for the same Hash file) by troll/Plaintiff to be taken into account and thus REDUCE the total damage award.  This of course would require one of these defendants to motion the court.  This seems unlikely, but if Troll/Plaintiff actually tries to collect, they may get a surprise.

DTD :)

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16 Jun 14 Update

Late addition – The judge decided to grant Troll VanderMay’s motion to withdraw as counsel for Elf-Man LLC.    Doc_60_Dismiss_Order_00395(WA)   Troll VanderMay was very lucky IMO.  I really doubt we will see her as counsel for anymore Copyright Trolls.   :)  So right now we have David Allen Lowe as counsel for Troll/Plaintiff.

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Thank you SJD for the recent post on the Lamberton case -Elf Man v. Lamberson: presented with the evidence of wrongdoing, plaintiff attempts to run away

That is right, the Troll/Plaintiff now wants to dismiss the case With Prejudice.   Doc_59_MTD_00395(WA)   This motion to dismiss came immediately after attorney Lynch filed a motion to compel discovery and supporting declaration.  Doc 57_MotionCompel_00395(WA)   Doc 58_Decl_LynchMTC_00395(WA)   I smell FEAR.  

The main problem the Troll is going to have is Mr. Lamberson (via Attorney Lynch) filed a counterclaims against Plaintiff prior the motion to dismiss.  Now according to FRCP 41, Mr. Lamberson could be dismissed, but only if the counterclaims still stand against Plaintiff.

(2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the action may be dismissed over the defendant’s objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice.

I don’t know if that would give Troll/Plaintiff any advantage, but I assume they would use the adjudication to try to claim much of Mr. Lamberson’s Discovery was no longer needed.  A sad weak argument, but one they would likely use.  As soon as the Troll/Plaintiff finds out the judge is not going to let then rum so easily, I believe Mr. Lamberson is going to get a settlement offer of some sort.  This is so Prenda-like it is hard not to chuckle out-loud.  More to come on this one.

DTD :)

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3 Jun 14 Update

Thank you Sophisticated Jane Doe for alerting me to this document.  On 3 Jun 14, Troll VanderMay motioned the court to allow her to withdraw as counsel for Elf-Man LLC.   Doc_109_Troll_WithD_00395(WA)   The exact reason may eventually be filed under seal, but for now we can still glean some information from it.

Issues have arisen between Plaintiff’s representatives and counsel, the nature of which make it impossible for counsel to both continue with representation and comply with the governing rules of professional conduct.  Because of their privileged and confidential nature, the reasons for this motion have not been disclosed in the accompanying declaration of counsel. Should the Court require the disclosure of this information, we request that we be permitted to provide this information under seal.

Troll VanderMay tells the court that if she stays local counsel for this Plaintiff, she will not be able to maintain the minimum level of professional conduct required of an attorney.  WOW!!!  Also who is this “Plaintiff’s representative” that she mentions.  It sounds very “Prenda” to me.  Until such time as replacement counsel is found, Troll VanderMay asks that the non-appearing counsel, Troll Carl D. Crowell, handle all activity.  So we can assume the issue doesn’t directly involve Troll Crowell.

I do hope the judge at least makes her file a detailed reason under seal.  Then at least the judge will have a clear view of this Troll/Plaintiff and their sleazy operation.

On a side note, I will be on a bit of vacation for a week, so my updates and comments my note be as prompt.  Please continue to send me your questions and I will get to them as soon as I can.

DTD :)    “These are great days e’re living, bros. We are jolly green giants, walking the Earth with guns.”  { Crazy Earl – Full Metal Jacket} 

2 Jun 14 Update

On 2 Jun 14, Attorney Lynch raised the stakes for Troll VanderMay and Elf-Man LLC, when he filed a second declaration supporting their motion to compel.   Doc_54_00395(WA)   Attorney Lynch informs the court that there are three similar Malibu Media/X-Art Copyright Troll cases in MD, where attorney Morgan Pietz is also trying to force Plaintiff to disclose relevant details concerning the German “Investigators.”

4. As Exhibit A, I attach a copy of the Reply Brief in that Maryland action (ECF No. 27) because it cites to evidence in this case Elf-Man v. Lamberson. The Reply explains that Mr. Patzer is the same witness as in the Lamberson case, and that Mr. Fieser plays the same role in the Maryland case that Mr. Macek plays in the Lamberson case.

5. In both the Maryland cases and in this Washington case, the accused defendants are confronted with evidence only from German investigators and in both cases the plaintiff has not been forthright as to the relationships of the plaintiff to the
investigators.

It sure looks like WA and MD are fast becoming not so Troll friendly.

DTD :)

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22 May 14 Update

Short update that isn’t a surprise to those of use who follow the Copyright Trolls.  on 22 May 14, Attorney Lynch filed an additional declaration in support of the motion to compel discovery (ECF #50 & 51- below).   Doc_53_00395(WA)   Doc_53-1_00395(WA)

While trying to determine the true location of Mr. Patzer and Macek, Attorney Lynch had some interesting discoveries.

7. Today we examined the telephone numbers given for Mr. Macek in the Initial Disclosures (+49-0-721-977-95-73) and Mr. Patzer (+49-0-7247-4056-199). We compared these phone numbers to the German Deutsche Telekom’s listing of “country” and “city” telephone codes. “+49” (used in both numbers) is the country code for Germany. “721” (used in Mr. Macek’s number) is the city code for Karlsruhe. “7247” is the city code for Linkenheim, a suburb of Karlsruhe. Neither phone number uses any of the “70x” or “71x” city codes associated with Stuttgart and its surroundings. We reported this additional discrepancy to plaintiff’s counsel (Exhibit A) as being an additional reason to doubt the accuracy of the addresses provided, but have received no response from plaintiff’s counsel.

8. I called the number provided for Mr. Macek to try to confirm his address, and the phone was answered “Guardaley.” The number for Mr. Patzer was not answered.

9. We have concluded from this information that the Stuttgart addresses provided for the witnesses in the Initial Disclosures are inaccurate. It appears plaintiff is not being forthright about the German addresses of the very witnesses plaintiff expects Mr. Lamberson to travel to Germany to depose. We have also concluded that the Karlsruhe telephone number and the answering of the telephone “Guardaley” indicates that Mr. Macek is in fact “working for” Guardaley and not Crystal Bay Corporation as the “explanation” provided by plaintiff in response to Request for Production No. 15 proffers.

As I said, no surprises here, but it sure creates a hell of a mess for Troll VanderMay.  Have fun with this one!

DTD :)

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The Elf-Man LLC case against Mr. Lamberson (2:13-cv-00395(EDWA)) is still ongoing, but it appears Troll VanderMay is slowing down a bit.  Maybe some stress?  Previous post on this case.

elfman_parody1Currently we are waiting for Judge Rice to rule on Troll/Plaintiff’s motion to dismiss Lamberson’s counterclaims (ECF #37).   Doc_37_00395(WA)   As this motion was filed on 31 Mar 14, I expect we will have a ruling soon.

On 9 May 14, a telephonic discovery conference took place.   Doc_47_00395(WA)

The Court and counsel discussed depositions of the parties; forensic analysis of defendant’s computer and the ability of Mr. Crowell to attend the depositions in this matter.

The Court declined to issue a discovery order at this time. The defendant is entitled to start the process for letters rogatory. The parties were encouraged to work together to schedule depositions and accomplish the forensic analysis of defendant’s computer. Mr. Crowell is entitled to attend the depositions, but must be admitted pro hac vice to participate.

So it looks Plaintiff wants to bring Mr. Crowell into this mess. He is the OR Troll that recently pulled a Prenda Law move when he filed a 50-Doe Oregon State Trademark infringement cases for Voltage Pictures (@voltagepictures).  This Oregon State case was clearly a Federal Copyright case.  The case has since been removed to the appropriate Federal jurisdiction – 6:14-cv-00816-TC.

Following the Discovery conference, Troll VanderMay filed a memo in opposition to Lamberson’s motion to compel discovery and a declaration in support of the memo.    Doc_48_00395(WA)   Doc_48-1_00395(WA)

I will say that I was shocked to see how short these two filings were.  Usually Troll VanderMay is very long-winded and loves to use “lawyer-speak.”  The other fact you will find interesting (and so did Attorney Lynch) is many of the points in Lamberson’s motion to compel were never disputed (much less even addressed) by her.

On 20 May 14, Attorney Lynch filed two documents

  • DEFENDANT LAMBERSON’S REPLY MEMORANDUM IN SUPPORT OF MOTION TO COMPEL DISCOVERY OR FOR ISSUANCE OF LETTERS OF REQUEST   Doc_50_00395(WA)
  • DECLARATION OF JEFFREY R. SMITH IN SUPPORT OF DEFENDANT’S REPLY ON MOTION TO COMPEL DISCOVERY OR FOR ISSUANCE OF LETTERS OF REQUEST   Doc_51_00395(WA)

In the reply memo, Attorney Lynch provides sound reasoning why the ONLY witnesses of Mr. Lamberson alleged infringement should be formally (and legally) deposed in the US and not use some unknown “informal” process – which might not even be legal.  Plaintiff was the one who employed the German company as its investigators and shouldn’t be allowed to use the high cost of travel to the US as a shield to having to produce these witnesses (and associated evidence).  As of the reply filing, Troll VanderMay has yet to provide any more insight into this issue.  And I doubt she will.

One area brought up by Attorney Lynch was the fact Plaintiff did not bother to dispute the various problems with the German “investigators.”

Messrs Macek and Patzer are not licensed and bonded in Washington, yet the plaintiff has selected these individuals to detect, discover or reveal evidence it plans to introduce into court. Plaintiff could have used the investigation from Messrs Patzer and Macek to hire a licensed local investigator to confirm the “infringement” – a local investigator who would be subject to the jurisdiction of the court and to service of process to compel testimony. {Page 6}

AND

Plaintiff does not dispute that the entirety of its liability evidence is that its investigator’s system does a “handshake” with an IP address and then sends a request for a bit to that IP address and in turn receives a bit. In the case of Mr. Lamberson, Plaintiff does not dispute that the uploaded bit from the IP address associated with Mr. Lamberson may be too small to be perceptible, or that the investigator’s machine doing the actual uploading may have been in The Netherlands, not Germany. Plaintiff does not dispute that its investigation does not account for “false positives” that could lead to erroneous identification of IP addresses, including that bittorrent “client software” can allow the “spoofing” of IP addresses (i.e. a person in a swarm can “make up” an IP address that is displayed to the others in the swarm). {Page 6-7}

Troll/Plaintiff continues to try to evade answering the straight-forward questions of WHAT is the relationship with the investigators.  Attorney Lynch states the sealed response they received from Plaintiff on 2 May 14, was lacking in key areas.

…and failing to provide any further explanation as to exactly how Mr. Macek, a German national, could possibly be “working for” a delinquent South Dakota corporation, and how such a delinquent South Dakota company with no offices could have “been retained” by Anti-Piracy Management Company, a company that pretends to have an office in Sacramento, California (but presumably is located in Karlsruhe, Germany) – all without any paperwork or financial terms. The May 2, 2014 explanation indicates “Mr. Macek is paid at a set rate in the form of a monthly salary which was in no way contingent upon the results of the subject investigation nor the outcome of this litigation” – but how could this be the case? How could a German national work for a delinquent South Dakota company? The May 2, 2014 explanation indicates “We have provided every document that exists concerning the subject relationships,” but this cannot be true since the explanation also admits “the parties to this arrangement are working upon but have not yet finalized the financial terms of their arrangement.” There must be some written explanation as to why the financial terms were redacted from the APMC agreement provided in discovery and there must be some written explanation why there are no terms at all with Crystal Bay. Indeed, if the South Dakota company Crystal Bay Corporation were a real company, we could seek discovery from it, but, as our April 16 letter questions, how could we seek discovery from a company with no office, and with a registered agent with no office? {Page 7-8}

Attorney Lynch attacks Plaintiff weak reasoning and I cannot imagine the court not granting Mr. Lamberson’s motion to compel.  The obvious stink of Troll/Plaintiff’s actions gives rise to a multitude of reasonable questions that can only be answered by these two witnesses.  If the motion to compel is approved, I seriously doubt we will see Macek and Patzer willingly come to the US.  I would expect them to pull a full-Prenda/Mark Lutz and not show up.  Maybe they can claim they were on a no-fly list and could not make it to the US.

If this happens, the case against Mr. Lamberson will be dismissed.  If the counterclaims against Plaintiff have not been dismissed, then it becomes Troll Open-Season.  :)   Fees, Costs, Sanctions….   As bad as this sounds for Plaintiff, it is still better than having to answer the questions that will lead to more questions and so on.   I imagine at such a time, there is also going to be a mad rush to voluntarily dismiss any remaining cases that can be tied to the German “investigators.”

One can also hope that the impending fallout in this case will affect Troll Lipscomb and Malibu Media. – See Exhibit H (Page 34) of Doc #51, DECLARATION OF JEFFREY R. SMITH.

Take a read of the filing from Attorney Lynch and tell me what you think.

DieTrollDie :)    “Well that’s great, that’s just fuckin’ great, man. Now what the fuck are we supposed to do? We’re in some real pretty shit now man…” – Aliens – Hudson

About John Doe (DieTrollDie)

I'm one of the many 'John Does' (200,000+ & growing in the US) who Copyright Trolls have threatened with a civil law suit unless they are paid off. What is a Copyright Troll? Check out the Electronic Frontier Foundation link - http://www.eff.org/issues/copyright-trolls
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11 Responses to Elf-Man LLC and The German Investigators – Lamberson Case – # 2:13-cv-00395 (WA)

  1. I liked the part where defendant’s counsel points out that what plaintiff is proposing is illegal under German law, as the deposition would have to be taken in the US Consulate, and the conference rooms there don’t allow phones! He then asks how plaintiff proposes the arrangement to work…

  2. Anon E. Mous says:

    another day another case tied to IPP/Guardley where the Troll attorney is desperate to not have anyone from the said monitoring company testify to their methods in a court of law. The fact that Vandermay seeks to allow other means to allow the defendant to depose Patzer and Macek tells me that they don’t want either of them facing a cross in person.

    I have issues with the fact they want to due a telephonic deposition. Just like Malibu, Elf Man LLC has an issue with presenting the witness whose affidavit was initial in the start of this lawsuit and that is alleged to have used certain software and methods to prove infringement took place.

    We all know Elf Man will claim trade secrets when it comes to what and how the results were obtained, but yet they submit affidavits to the court from a monitoring firm and it’s employees in another country with no access to them for deposition, I wonder when Paige will come up as the only person who can testify in this from Vandermay.

    I love the fact that Crystal Bay was brought up as a defunct entity in SD and that the monitoring firm has a non existent location except for a drop mail address. Lynch has a very good point here that a Judge will not be able to ignore and the trolls are going to have a little bit of trouble explaining.

    I would have to believe that an attorney would have had to create Crystal Bay corporation in South Dakota and that would also apply to the monitoring firm corporation in the state of California. More often then not those types of set ups have a lawyer listed on the creation of the company set up documents filed with the states in question for the purpose of any legal documents served to the companies. I would love to know what lawyer set up both companies?

    I also wonder whose name from IPP/Guardaley is on the affidavit that was submitted that started the litigation. In the Malibu cases it is usually Tobias Fieser on the affidavit. So I wonder who it is on the Elf Man case at hand. And if it is not Feiser, why would it be someone else?

    Do the guys at IPP/Guardley swap job descriptions every week or something. Or is Feiser like Alan Cooper that worked for Prenda and was signing documents but could never be in court cause he doesnt exsist. One has to wonder if Fieser is more an apparition to insulate from litigation in case anything goes wrong on the legal front.

    Vandermay and Elf Man are going to be in tough against Lynch on this one, I believe this Judge senses there is something seriously wrong with this case When you have companies that are non-exsistant enities and no physical presence and no employees to depose. We have seen this before with Prenda, and it was the start to the implosion of the end of their trolling scheme.

    This should be fun to watch.

  3. Kelly says:

    The Plaintiff is not going to trial with these rent-a-mailbox companies and investigators. This shows how lame the Federal Court judges are. As soon as you see an affidavit from a foreign investigator as the only evidence, alarms should go off as to whether this is at all legitimate. Tens of millions of dollars have been pilfered from hard working Americans because of a broken copyright legal system. VanderMay should be disbarred for perpetrating a fraud before the court.

  4. Pingback: Devil’s cookbook: Guardaley’s presentation | Fight Copyright Trolls

  5. Christenson says:

    On the update, my popcorn futures just rose 1%! The blithe assurances alone should be worth a show cause, because there is no innocent explanation any more…. anyone want to take bets on which of Fieser, Patzer, and Macek actually exist and aren’t simply figments of stolen identities or overactive imaginations?

  6. Pingback: Defense: Guardley is steering US copyright trolling operations | Fight Copyright Trolls

  7. Raul says:

    Have a great vacation DTD.

    Cannot wait to see the repercussions of this move in this case and in the other cases in which questions are being asked about these German shells upon which the entire house of cards is built.

  8. Pingback: Elf Man v. Lamberson: presented with the evidence of wrongdoing, plaintiff attempts to run away | Fight Copyright Trolls

  9. Raul says:

    BTW VanderMay moved to get out of the The Thompson Film lawsuit (13-CV-126) and was allowed to run away. Must be the same motley crew of Germans behind those troll lawsuits as well.

  10. Pingback: Judge Lynn Hughes does not mince words | Fight Copyright Trolls

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