10 Apr 12 Update – Third Degree Films, Inc. v. Bailey Zwarycz, 1:11-cv-01833-BAH, District of Columbia

Thing just keep getting interesting in the Third Degree Films, Inc. v. Bailey Zwarycz, case:1:11-cv-01833-BAH, District of Columbia.  (Previous posting

On 6 Apr 12, John Lowe (Zwarycz’s attorney) filed an opposition to Plaintiff’s motion to have the deposition of itself taken over the telephone.   Zw_Opp_TeleDisp_01833(DC)

Mr. Lowe first informs that court that for the second time, Plaintiff has failed to abide by standing order regarding discovery disputes in this court. 

  • Plaintiff never met with nor tried to contact Zwarycz’s attorney concerning disputed parts of the Discovery.  
  • Plaintiff never provided Mr. Lowe the following basic information:   “identity and position of the deponent, Plaintiff’s counsel’s scheduling conflicts that might enter into the dispute, the deponent’s scheduling problems, if there were any, and other factors that would be susceptible of discussion.” 
  • Then to top it all off, Mr. Lowe points out that Plaintiff didn’t even obtain the court’s permission to file the motion, as required by the standing order. 

Looks like Plaintiff doesn’t want to be deposed.  I wonder why?  😉

Mr. Lowe provided the following reasons as to why Plaintiff’s motion should be denied.

  • Plaintiff selected the District of Columbia (DC) as the venue to bring this case.  Even in this venue, Zwarycz resides 250 miles away in West Virginia.  Mr. Lowe also cited one ruling in which a Plaintiff corporation was required to travel to the venue location.
  • Plaintiff has failed to show any compelling circumstances to prevent the deposition being taken in the DC jurisdiction.    Mr. Lowe cited a couples cases supporting the view that Plaintiff should be the one to travel:

These courts have reasoned that as the party initiating the lawsuit and choosing the forum, the plaintiff should be required to bear the burden of any inconvenience during discovery. Accordingly, these courts have found that plaintiffs should be required to travel to the forum state for a deposition unless compelling circumstances relieve them of their duty.

  • Plaintiff fails to show any compelling reason why a telephonic deposition is needed.  The only reason cited for a telephonic deposition was to prevent having Plaintiff travel 4600 miles.  As Plaintiff decided on this jurisdiction, he must have realized that there would come a time when they would have to travel to the jurisdiction to accomplish any discovery and trial. 

Furthermore, in initiating the sort of mass litigation that it has in this forum as well as others, including New York, Houston, and Maryland, to name just a few, Plaintiff cannot argue that it will be burdened by such travel when it was a foreseeable and highly expected aspect of such litigation. Plaintiff knew or should have known that initiating litigation in those fora would normally result in a need to travel to those fora for depositions, and should have factored that into its decision on litigating in those fora. The costs of such travel would seem relatively minor in light of the substantial claims involved in this case where the Plaintiff has sought to obtain $2,500 each from 152 Defendants through settlement alone; a factor that the court found compelling in the Clem case when determining the amount of hardship imposed on the deponent. Clem, 102 F.R.D. at 940. Moreover, courts have found that “a claim of financial hardship, taken alone, does not demonstrate the exceptional or compelling circumstances” required by the standard in Clem. Farquhar, 116 F.R.D. at 72. Accordingly, any burdens Plaintiff might incur by travelling to the forum jurisdiction for deposition do not amount to compelling circumstances.

  • Zwarycz has good reason to oppose the telephonic deposition.  A complex case involving 150 defendants, multiple documents, a foreign corporation, 3rd party ISP, and a number of similar law suits filed by Plaintiff and others which are likely pertinent to this case.  Face-to-face deposition is the best way to observe the demeanor and conduct of Plaintiff as it pertains to proving an ulterior motive of Plaintiff and the abuse of process claim.  The face-to-face deposition will also prevent any possible confusion when dealing with multiple existing documents and yet to be discovered documents based on the written deposition of Plaintiff.  Mr. Lowe may also ask Plaintiff to provide diagrams, drawings, or other hand written items in response to questions.  Finally Mr. Lowe address the relevant part that without being at the same location as Plaintiff, they can’t actually observe who is attending the deposition and possible coaching Plaintiff in his responses.   Do you really think a Copyright Troll and a Porn Content Owner would ever even think of such an idea?

This was a very nicely written opposition to Plaintiff’s motion.  I can’t see what issues Plaintiff will raise to dispute this opposition, but we will see.  I sure it is bound to make everyone laugh. 

DieTrollDie 🙂

About 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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21 Responses to 10 Apr 12 Update – Third Degree Films, Inc. v. Bailey Zwarycz, 1:11-cv-01833-BAH, District of Columbia

  1. Doe-eyed_Deer says:

    Thanks for doing what you do. I just received notice from my ISP that I was named as a Doe in 1:12-cv-10537 Patrick Collins vs. Does 1-45. Not really certain what to do hear, whether to plan on settling or fighting. I figure I’ll hire a lawyer anyway. Any word on whether filing a MTQ in Massachusetts is a waste of time?

    • Raul says:

      Sorry to hear you have been implicated in this scam. MA is a brand new state for the trolls and there is no precedents yet as to MTQs. However, what do you think the judicial reception will be in your blue blooded state for CA pornographers? File a motion to quash/sever/issue a protective order as it is not a waste of time because you are in uncharted waters.;

      the above is for discussion purpose only amd in no way constitutes legal advice

    • Raul says:

      Doe-eyed_Deer,

      I apologize there have been 2 previous troll lawsuits in MA. In one of those cases the MTQs were denied but that hardly sets a precedent at his juncture as a different judge to rule the other way. I checked your docket on PACER and did not see the order authorizing the troll to subpoena your ISP? Here is the RECAPPED docket http://ia601207.us.archive.org/7/items/gov.uscourts.mad.142867/gov.uscourts.mad.142867.docket.html

      DTD-While looking into this I came across a very interesting case, Liberty Media Holdings v. Swarm Sharing Hash File,et al (case no. 11-cv-10802). You could write a novella on this one http://ia601201.us.archive.org/4/items/gov.uscourts.mad.142868/gov.uscourts.mad.142868.docket.html A lot of this case has been RECAPPED and it involves ” Down on the Farm” and it is being litigated vigorously. The several items of interest that I glanced over are:

      1. Doc 46-Order Denying Motions to Quash in which the judge in footnote 2 muses on whether pornography is entitled to protection against copyright infringement.
      2. Doc 81-Answer and Counterclaims premised on the Electronic Communications Privacy Act.
      3. Doc 105- in which a represented defendant agrees to the entry of a $51,000 judgment!?

      • DieTrollDie says:

        Thanks Raul. I will have to take a look at that case.

        DTD 🙂

      • I covered one “Down the farm” MA case not long time ago. MA is not exactly virgin state: Aaron Silverstein (Randazza’s gang) has been trolling there for a while.

        Now we have a freshly converted weretroll Marvin Cable (he was on the defense side against Liberty Media lawsuits previously).

      • Doe-eyed_Deer says:

        Raul,
        Thanks for the advice. Having seen your posts on this site and the other troll blogs, I cannot thank you and DTD enough for what you have done. You give people like me hope and clear vision. I cannot commend you enough!

      • Raul says:

        DTD-What makes me furious Part I. Exhibit A to any Doe motion that copyright trolling =blackmail would be this http://ia700608.us.archive.org/22/items/gov.uscourts.mad.136393/gov.uscourts.mad.136393.105.1.pdf I find it unimaginable that an attorney advised his/her client to consent to this because the range of default judgments is between $750-$6,000 unless the client was already planning on filing for bankruptcy. This Troll has a first class ticket for a non-stop ride to Hell by virtue of the evil that is being demonstrated in this lawsuit. The asshole, apparently homophobic, judge deserves at least purgatory for not putting an end to this case which is now nearly one year old.

      • DieTrollDie says:

        Yes. There is more to this story than we will see. Reading between the lines, I would say the defendant probably made the mistake of talking to the Trolls and admitting to downloading/sharing movies. Probably thought he could beg for mercy and the Troll would be nice to him. One hell of a mistake. I hope the guy is filing bankruptcy.

        DTD 🙂

      • Doe-eyed_Deer says:

        Hi Raul,
        How exactly did you find that on pacer? I am trying to do a search on pacer and am unable to find my case #. A motion to quash was filed on 4/17 and I wanted to share it with the group, so I visited pacer with recap and viewed the documents, but I can’t seem to find it. Pacer #142867

        Thanks!

  2. On a side note, it’s so cool I don’t miss any comment from DTD and Cashman’s site anymore! I have my reasons not to use RSS readers (actually I use Google reader, but I don’t want to mix subjects, keepit for my “main” incarnation), and subscribing to each thread requires commenting first (and not forgetting to check the checkbox).

    So I searched for RSS-to-email services and found a decent one: RSS FWD. I recommend it to those who don’t want to use RSS readers.

  3. marcie says:

    Ah yes, “Down on the Farm.” I saw that one pro se defendant argued that the Copyright Registration listed a different Title for the film and that this should preclude recovery of statutory damages or attorneys fees(Probably a whole new registration is in order). The Compendium II: Copyright Office Practices(the Copyright Offices internal guide for examiners) states that a variance in Title is a material error and the office would add to the registration the Title as it appears on the work. That didnt happen here. That either means Liberty never submitted a deposit, or it slipped through. At any rate, the examples they give in the Compendium of a title variance that would need to be added to a registration are:

    1) The title of the work on the phonorecord deposited for registration is “The Quick Brown Fox. II The application gives the title as “The Brown Quick Fox.” The Copyright Office will annotate the application to reflect the title appearing on the phonorecords.
    2) The title on the copies is “On Nuclear Rearmament”; the application gives the title as, “No Nuclear Rearmament.” The Copyright Office will annotate the application to reflect the title appearing on the copies.

    “Corbin Fisher Amateur College Men Down on the Farm” and “Down on the Farm”…. hopefully someone will jump on that…

  4. marcie says:

    Ah yes, “Down on the Farm.” I saw that one pro se defendant argued that the Copyright Registration listed a different Title for the film and that this should preclude recovery of statutory damages or attorneys fees(Probably a whole new registration is in order). The Compendium II: Copyright Office Practices(the Copyright Offices internal guide for examiners) states that a variance in Title is a material error and the office would add to the registration the Title as it appears on the work. That didnt happen here. That either means Liberty never submitted a deposit, or it slipped through. At any rate, the examples they give in the Compendium of a title variance that would need to be added to a registration are:

    1) The title of the work on the phonorecord deposited for registration is “The Quick Brown Fox. II The application gives the title as “The Brown Quick Fox.” The Copyright Office will annotate the application to reflect the title appearing on the phonorecords.
    2) The title on the copies is “On Nuclear Rearmament”; the application gives the title as, “No Nuclear Rearmament.” The Copyright Office will annotate the application to reflect the title appearing on the copies.

    “Corbin Fisher Amateur College Men Down on the Farm” and “Down on the Farm”…. hopefully someone will jump on that… I mean, whats the point of having a searchable catalog if people can register under titles that dont appear on the work itself…

  5. raul4117 says:

    RECAP on PACER is only as up to date as the last person who updated it . Run your lawsuit on PACER for a nominal charge of $00.10.(it can add up so watch it)and you should find the document you are looking for. Pay to download it on Firefox with the RECAP plug-in,
    Wait until RECAP gets it.Return to the PACER query result page and click on “History/Documents” and you should see that RECAP is available and that it is updated and your document can now be shared in pdf. format. I am no techie so maybe someone else has a more simplistic explanation.

  6. Raul says:

    DTD,
    Check out recent developments!

    • DieTrollDie says:

      Thanks Raul. Looks like Third Degree Films (TDF) was able to get Bailey Zwarycz and two other Does (Does 116 & 117) dismissed with prejudice on 10 May 12. On 14 Jun 12, a notice of appeal (to the DC Appellate court) was filed – concerning TDF being dismissed from Zwarycz’s counterclaims. Zwarycz has ordered a transcript of the hearing (20 Apr 12) that took place in front of Judge Howell. A copy of the transcript was requested to be sent to Zwarycz’s attorney and the court. Hopefully the full transcript will be made available in PACER.

      Not what I would have liked to have seen happen, but there are still some interesting parts that need to be mulled over. The appeal should be interesting to watch also. I will post up some of the documents in a while.

      DTD 🙂

      • Raul says:

        It looks as if Judge Howell may have pulled a fast one on Zwarycz’s lawyers as the dismissal occurred during a status conference and is not part of the Order that issued as a result of that conference (an ambush by Judge Howell?). I think this will be the first porno troll lawsuit to get before a Circuit Court. One of the issues on appeal (I think) will be whether plaintiff’s counsel abused legal process while pursuing a standard troll lawsuit.

  7. Anonymous says:

    Obviously we’d all prefer the Troll was still on the hook for the counterclaim, but this is still a strategic blunder for the Troll and should embolden every Doe. Third Degree Films is so desperate to avoid having their case tried on the merits that they dismissed Zwarycz with prejudice in an attempt to make it impossible for the case to be litigated. Faced with having to prove their case they showed their true colors, they ran like cowards. Just as John Steele and Brett Langdon Gibbs were cowards in the Wong v. HDP case.

    All Does take note, Copyright Trolls won’t try their cases!

  8. Raul says:

    Checked in on the appeal, nothing, although it has to be fully briefed at this point:

    Case Query

    12-7052 Third Degree Films, Inc. v. Does, et al

    Associated Case Short Title Type Start End Status

    Originating Case Lead Case Filed Execution Date Judgment NOA Originating Judge Court Reporter
    1:11-cv-01833-BAH 1:11-cv-01833-BAH 10/18/2011 05/10/2012 06/06/2012 Howell, Beryl A.

    Party Party Type Terminated from Case Attorney
    Third Degree Films, Inc. Plaintiff-Appellee Meier,Mike
    Does Defendant-Appellee
    Zwarycz, Bailey Defendant-Appellant Lowe,John Christian
    Tabor, Talbort Defendant-Appellee
    Marrow, George Defendant-Appellee
    Nag, Sanjay Defendant-Appellee
    Joseph, Keith Defendant-Appellee 06/14/2012 Somech,Dennis Adrian

    Attorney Party Type(s) Represented Representation End
    Meier, Mike Plaintiff-Appellee
    Lowe, John Christian Defendant-Appellant
    Somech, Dennis Adrian Defendant-Appellee 06/14/2012

  9. Raul says:

    Checked in again:

    Court of Appeals Docket #: 12-7052 Docketed: 06/14/2012
    Nature of Suit: 3820 Copyright
    Third Degree Films, Inc. v. Does, et al
    Appeal From: United States District Court for the District of Columbia
    Fee Status: Fee Paid
    Case Type Information:
    1) Civil Private
    2) Private
    3)
    Originating Court Information:
    District: 0090-1 : 1:11-cv-01833-BAH Lead: 1:11-cv-01833-BAH
    Trial Judge: Beryl A. Howell, U.S. District Judge
    Date Filed: 10/18/2011
    Date Order/Judgment: Date NOA Filed:
    05/10/2012 06/06/2012
    07/16/2012 Open Document DOCKETING STATEMENT FILED [1383866] by Bailey Zwarycz [Service Date: 07/16/2012 ] [12-7052] (Lowe, John)
    07/16/2012 Open Document STATEMENT OF ISSUES FILED [1383867] by Bailey Zwarycz [Service Date: 07/16/2012 ] [12-7052] (Lowe, John)
    07/16/2012 Open Document TRANSCRIPT STATUS REPORT [1383870] by Bailey Zwarycz [Service Date: 07/16/2012 ]. Status of Transcripts: transcripts needed for the appeal have been ordered, but not all transcripts have been received. Next APPELLANT transcript status report due 08/15/2012. [12-7052] (Lowe, John)
    07/16/2012 Open Document UNDERLYING DECISION IN CASE submitted [1383871] by Bailey Zwarycz [Service Date: 07/16/2012 ] [12-7052] (Lowe, John)
    07/20/2012 RESPONSE IN OPPOSITION FILED [1384731] by Bailey Zwarycz to motion to dismiss case [1383679-2], motion to dismiss case for lack of jurisdiction [1383679-3], motion to dismiss case as frivolous [1383679-4], motion for attorney fees [1383679-5] [Service Date: 07/20/2012 by CM/ECF NDA] Pages: 16-20. [12-7052] (Lowe, John)
    07/23/2012 Open Document –RESPONSE IN OPPOSITION FILED [1384930] by Bailey Zwarycz to motion to dismiss case [1383679-2], motion to dismiss case for lack of jurisdiction [1383679-3], motion to dismiss case as frivolous [1383679-4], motion for attorney fees [1383679-5] –[Edited 09/28/2012 by LMF] (Lowe, John)
    07/25/2012 Open Document REPLY FILED [1385695] by Third Degree Films, Inc. to response [1384930-2 [Service Date: 07/23/2012 by CM/ECF NDA] Pages: 1-10. [12-7052] [Edited 09/28/2012 by LMF] (Meier, Mike)
    07/30/2012 Open Document REPORT FILED [1386560] by Third Degree Films, Inc. Status of Transcripts: Final [Service Date: 07/30/2012 ] [12-7052] (Meier, Mike)
    07/30/2012 Open Document CORRECTED TRANSCRIPT STATUS REPORT [1386562] by Bailey Zwarycz [Service Date: 07/30/2012 ]. Status of Transcripts: Final – All transcripts needed for the appeal have been completed and received. [12-7052] (Lowe, John)
    10/16/2012 Open Document PER CURIAM ORDER filed [1399909] referring motion to dismiss and for attorneys’ fees [1383679-2], [1383679-3], [1383679-4], [1383679-5] to the merits panel to which this case is assigned. The parties are directed to address in their briefs the issues presented in the motion to dismiss rather than incorporate those arguments by reference. Before Judges: Rogers, Tatel and Kavanaugh. [12-7052]

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