Defendant Butler Has No Computer Hard Drives – Malibu Media LLC, 1:13-cv-02707 (CO)

Here is a short post, as I have a costume party to get ready for.  Note: I certainly will not be dressing up like a Troll.  This is an update on Malibu Media LLC v. John Butler, 1:13-cv-02707 (CO). Since my last Butler post, the following has happened.

  • MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES – Troll/Plaintiff requested the court strike three of the five affirmative defenses he asserted (Failure to State a Claim, Assumption of the Risk, and Intervening Cause)   Doc_36_MotionStrike _Answer_02707(CO)
  • UNOPPOSED MOTION FOR EXTENSION OF TIME TO SERVE EXPERT WITNESS REPORT BY PLAINTIFF MALIBU MEDIA, LLC – Troll/Plaintiff asked the court for a 90 day extension (10 Nov 14) to serve expert witness reports.  The Forensic expert (assume it is P. Paige) has not receive the hard drive from the Defendant.  WHY??? Because the Defendant doesn’t have the computer anymore!  Defendant claims to only have a cell phone at this time.   Doc_38_MotionTime_02707(CO)
  • MINUTE ORDER – Judge Hegarty tells Troll Kotzker “NO” to 90 days – only grants 30 additional days.  Discovery is due NLT 17 Nov 14.   Doc_40_MinOrder_02707(CO)
  • RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE – Judge Hegarty agrees with Troll/Plaintiff and Strikes the three affirmative defenses.   Doc_41_Hegarty_REC_02707(CO)
  • DEFENDANT’S OBJECTIONS TO MAGISTRATE’S RECOMMENDATION THAT PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S AFFIRMATIVE DEFENSES BE GRANTEDAttorney Richard Hanes objects to the Recommendation based on – 1) Defendant was deprived of his right to file a response to Plaintiff’s motion and for it to be considered prior to the recommendation; 2) The recommendation lacks legal sufficiency to show that Plaintiff would succeed despite any facts from the Defense (especially since Discovery has not taken place); and 3) the recommendation would deprive the Defendant of his right to defend himself from Plaintiff’s allegations.   Doc_42_OBJ_Hegarty_REC_02707(CO)

HardDrivesWell this just got interesting.  No computer hard drives are available for Troll/Plaintiff to examine.  So what will the Troll do???  The only things I can imagine is using the list of “Other” files that were being shared via BitTorrent on Butler’s IP address, interviewing neighbors, friends, associates, and doing social media searches and records checks.  The “Other” files would somehow need to be able to be linked back to the Defendant’s hobbies, profession, or interests.  Example: Social media searches disclosed the Defendant really likes “Thomas the Tank Engine” and among the “Other” files being shared via BT is 4 DVD rips of Thomas the Tank Engine.

Thomas1As Troll Kotzker has known the computer was long gone and not tried to develop/show any linkage to the allegation, I bet they are grasping at anything.  If they decide to talk to neighbors, they will be looking for anything to show Defendant used BT, anything he said about illegal downloading of copyright protected media, and of course Plaintiff’s movies. The bottom line is the Troll has its work cut out for them to somehow scrape up enough evidence to show a preponderance of evidence in their favor.

Now I’m no Judge Hagerty fan, but it does seem like the judge is getting a little tired of the games Troll Kotzker and Malibu Media/X-Art are playing in CO.  We will see what happens.  It may turn out that Troll/Plaintiff tries to secure a “walk-away” deal with Defendant.  If this goes to trial with no forensic evidence, I will be surprised.

DieTrollDie 🙂   “You might belong in Gryffindor, Where dwell the brave at heart, Their daring, nerve, and chivalry Set Gryffindors apart…”  {The Sorting Hat, “Harry Potter and the Sorcerer’s Stone”}

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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5 Responses to Defendant Butler Has No Computer Hard Drives – Malibu Media LLC, 1:13-cv-02707 (CO)

  1. JohnD'oh! says:

    NOT A CHANCE they take him to court with no hard drive. Without a forensic examination there is nothing but circumstantial evidence, and they’d be fools to try a jury trial (not that they ever would anyway) with just that. They’ll probably still try to scare him into a settlement with threatening to drag it out, and it sucks he’ll still have to likely pay his defense but I guess that’s better than having to pay these extortionists.

    • DieTrollDie says:

      Circumstantial evidence is not bad, especially when the required level of proof is only 51%+. Still I think if Troll Kotzker had more evidence he would saying so. I do think they will play this out as far as they can, as it sends a message to those that fight back – it is going to cost you.

      DTD 🙂

  2. WDS says:

    Do we know when the computer left Butler’s possession? If it was after he was served, then I think Malibu makes an argument it was to dispose of evidence. If Butler can show he got rid of it before being served, then I think Malibu will be looking for a way out.

    • DieTrollDie says:

      I haven’t seen anything that even hints at this.If Troll Kotzker knew it happened after the ISP notification, I’m sure he would have file something claiming spoliation. As they are silent on that, I doubt their is anything that helps the Troll.

      DTD 🙂

  3. Jane Doe says:

    It appears Judge Hegarty just loves to rubber stamp anything the Plaintiff wants. I’m referring to his recommendation to strike affirmative defenses. There is no reason to do this prior to discovery that uncover a sound legal basis for these defenses.

    Lacking a computer and hard drive, plaintiff is left relying on little besides their foreign investigators that likely have no expertise and a rent a drop mailbox address, possibly milliseconds of swarm traffic. So their only chance is to waste the defendants money and the courts time, pretending they have a case. This case should be dismissed as plaintiff has no means to prevail.

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