4 May 14 Update
On 3 May 14, TorrentFreak ran an article on this case – Accused Pirate Slams Bittorent Tracking Outfit in Court. On 30 May 14, Attorney Lynch filed a motion to compel Plaintiff to either produce their two German “fact” witnesses (Michael Patzer & Daniel Macek) or issue letters of request to allow for the deposition to occur in Germany. DecCompel_000395(WA)
As I have previously said, this is a clue that Troll/Plaintiff does not want the inner workings of their operation to be exposed. It begs the question of “Why?” It is my belief that this case AND other Malibu Media LLC ones (at the same stage of “stalling discovery”) will be extremely important to how the courts see and handle these BitTorrent cases. By simply answering the deposition questions, the “fact” witnesses will allow the Defense to see the weak point of the evidence collection, as well as what the “evidence” really means.
It is my belief that from very start, the German firms running these BitTorrent monitoring set-ups never intended them to go this far. If they had been designed with this in mind, the release of such operating information, procedures, and evidence would not be a big deal. As their design was to avoid this, I bet they took plenty of short cuts to reduce operating costs. These short cuts are what will be the down fall of these firms.
Attorney Lynch does a great job of showing the court how central these two witnesses are to this resolving this case. I hope the court does compel Plaintiff to make them appear at the deposition. Plaintiff will them have to weigh the option of ignoring the court order or deal with the disclosures that come from it. Either way, the results are not going to be good for any Troll/Plaintiff that uses such firms.
I have been meaning to do an update on this case, but something always pushes it back. So here is a short update to the Elf-Man LLC, v. Lamberson case, # 2:13-cv-00395.
Not surprising but Troll Vandermay/Plaintiff are still avoiding the production of discovery items to the Defense. This is a clue people – ALL of the Troll/Plaintiff’s out there DO NOT want to disclose the inner workings of their “operations.” They know that their operations cannot survive the disclosure and are willing to risk contempt to avoid it. Please pay particular attention to document #39 below (Declaration of Attorney Christopher Lynch).
So since the last update, here is what has happened.
- 17 Mar 14 – Defendant Lamberson filed his Second Amended Answer, Affirmative Defenses, and Counterclaims. 2ndAAnswerCC_00395(WA) 2ndAAnswerCC_Exhibits_00395(WA)
- 31 Mar 14 – Plaintiff’s Motions in Response to Defendant’s Second Amended Answer, Affirmative Defenses, and Counterclaims. In this document, Troll/Plaintiff makes three motions – 1) Motion to Dismiss Counterclaims Pursuant to Fed. R. Civ. P. 12(b)(6) for Failure to State a Claim Upon Which Relief Can Be Granted; 2) Motion to Dismiss Counterclaims and/or Strike Affirmative Defenses Based Upon Allegations of Fraud Pursuant to Fed. R. Civ. P. 9(b); & 3) Motion to Strike Pursuant to Fed. R. Civ. P. 12(f) the following redundant, immaterial, impertinent and/or scandalous matter in Defendant’s second amended answer as listed: Doc37_ Plaintiff Resp_00395(WA)
- 11 Apr 14 – Defendant Lamberson’s Responds to Plaintiff motions to dismiss counterclaims/affirmative defenses. Doc38_ Lamb_Response_00395(WA)
- 11 Apr 14 – Declaration of J. Christopher Lynch in support of Defendant Lamberson’s response to Plaintiff’s Response/Motions to Dismiss. Doc39_ Decl_Lynch_00395(WA)
They are all worth reading, but I want to focus on the Declaration of Lamberson’s attorney, Christopher Lynch. This declaration makes it exceedingly clear to the court (and anyone who reads it) that Troll/Plaintiff’s allegations are baseless and they have no intention of actually having the cases judged on their merits or even producing discovery material that could hurt their case.
The damning part is that Elf-Man LLC, does not hold the exclusive rights to the movie “Elf-Man!”- agreement filed under seal
Through discovery, Mr. Lamberson requested production of any agreements between Elf-Man LLC and Vision Films, Inc. Plaintiff produced such an agreement dated May 1, 2012. That agreement is attached separately under seal as Exhibit 1 hereto. That agreement at page 1 makes an assignment of the exclusive rights in the movie Elf-Man from Elf-Man LLC to Vision Films, Inc. (“Vision Films”).
As well as…
On February 15, 2013, Elf-Man LLC issued a “to whom it may concern” memorandum wherein it acknowledged that it had assigned the exclusive rights in Elf-Man to Vision Films. That memorandum is attached separately under seal as Exhibit 2 hereto.
Attorney Lynch goes on to tell the court that Vision Films, Inc., has filed a copyright infringement case in TN, “3:13-cv-00128, wherein Vision Films states that it is the owner of the exclusive rights in Elf-Man.” He also informs the court that a subpoena has been served on Vision Films, for a copy of the sales agreement with Elf-man LLC. “To date, Vision Films has not produced any of the documents.” Go Figure
Anyone Care for a German Twist???
Funny how “German” firms and investigators like “Michael Patzer” shows up in these cases. This sounds strikingly similar to the Malibu Media LLC case in MD. Fightcopyrighttrolls Article
Mr. Lamberson has served Requests for Production on Elf-Man LLC to produce any agreements between it and its German “investigators” Daniel Macek and Michael Patzer. Elf-Man LLC refused to produce these documents. Mr. Lamberson initiated a telephonic discovery conference with the Court which was held February 27, 2014. At the conference, the Court ordered plaintiff to produce these documents or to provide a narrative explanation of the relationship. To date, Elf-Man LLC has not produced any responsive documents or narrative explanation. Defense counsel has sent reminders and requests to comply with the Order on March 14, 2014 (Exhibit 3 hereto), March 31, 2014 (Exhibit 4), but Elf-Man LLC remains in contempt of the Order.
As of 3 Apr 14, we know that Plaintiff has been in contact with Mr. Patzer, as “counsel for Elf-Man LLC informed counsel for Mr. Lamberson that Mr. Patzer “will expect to be paid his hourly rate in addition to his travel expenses” in order to be deposed.” Doc_39_Ex5_00395(WA)
Plaintiff has also failed to produce other items they were order to by the court.
- Copies of the links, trackers, and torrent sites allegedly accessed by Mr. Lamberson to allegedly download the movie. Nothing has been produced and plaintiff claims it has no such evidence (despite the allegations of the First Amended Complaint).
- Copies of the any demand letters or take-down notices to third-parties demanding cessation of infringement of Elf-Man. Nothing has been produced and plaintiff claims it has no such evidence.
So right now I believe the court is waiting to see if troll Vandermay replies to Lamberson’s response. I expect that sometime after 25 Apr 14, the court will rule on these issues. It is going to be interesting to see how Plaintiff tries to get around the fact that it DOES NOT have the right to sue people for copyright infringement of this movie. Also of interest is the deposition of Mr. Patzer, as it could impact some high-interest Malibu Media LLC cases out there.
Please read over the documents and give me your thoughts.