This is an interesting Malibu Media/X-Art case in which Troll/Plaintiff is having a big
problem with agreeing to a Protective Order (PO) in relation to a forensic examination of
a Defendant’s computer hard drives. The case is Malibu Media LLC v. Mike Cuddy,
1:13-cv-02385, Colorado. The local Troll for this is Jason Kotzker. Archive Docket
Some of the case documents: Doc_28_02385(CO) Def_Answer_Doc_29_02385(CO) Doc_38_02385(CO) Doc_48_02385(CO)
Bottom Line: Troll/Plaintiff is not happy that it is NOT being allowed to conduct a free-range “Fishing Expedition” of the Defendant’s hard drives.
So What Does Troll/Plaintiff Do When They Don’t Get Their Way???
They file a Motion To Compel Defendant to produce the hard drives in direct opposition to the courts standing order.
The Court ordered production of Defendant’s hard drives for limited searching purposes, but only after a Protective Order was in place. [CM/ECF 50].
As the PO has NOT been agreed upon, Defendant has not provided the hard drives. It would be a serious mistake to allow Malibu Media’s “Expert,” Patrick Paige to have access to the hard drives without the PO in place. Sorry, doing that is not a mistake, it is just plain stupid. So on 9 Jan 15, Mr. Cuddy’s attorney filed a combined motion in opposition to Troll/Plaintiffs motion to compel and their proposed PO. Note: I only have a couple of the Exhibits from this motion; please feel free to RECAP them if possible. Doc_67_02385(CO) Doc_67-2_02385(CO) Doc_67-3_02385(CO) Doc_67-12_02385(CO)
So What Are The Limits On The Search?
Defendant’s attorney, Carolyn Lindvig, Godin & Baity, LLC, wants the forensic examination to be limited to the relevant areas based off the specific claims of the Plaintiff. Which is:
- 31 Malibu Media/X-Art movies
- Use of any BitTorrent (BT) applications
- Anything showing that evidence was destroyed (spoliation)
The court agreed to this and told both sides to work out the specifics of the PO.
Based on the case specifics as present by Troll/Plaintiff, this is a “no-brainer” in my opinion. Troll/Plaintiff claims the public IP address associated to Defendant Cuddy (ISP subscriber) was recorded sharing 31 Malibu Media LLC copyright protected works via BT on a specific date/time. The results of such a limited scope search are going to be:
- Evidence is present on the hard drive(s)
- No evidence is found
- There is evidence that evidence was destroyed or the presence of data wiping application
Now based on what (if any) evidence is found, Troll/Plaintiff can request additional court authority to expand the search parameters to the relevant areas. Example: The examination discloses that “CCleaner” was on the computer. Troll/Plaintiff could request the court authorize a deeper look into the files/registry associated with CCleaner to determine IF it was used to wipe/destroy any files. Note: CCleaner by itself is NOT an indicator of data destruction, ONLY the possibility. Further examination will be needed to determine how/when it was used.
So What Is Troll/Plaintiffs Problem With The Search?
The problem is Troll/Plaintiff wants to have free range in HOW conduct the search and nothing is off-limits. They would rather be given the hard drive copies and allow Mr. Paige to have a free-for-all into Defendant Cuddy’s private affairs. The best they can do is simply say “trust us,” we would never abuse the parameters of the search. Laughable simply laughable
Here is the proposed limits to the search from the Defense
(1) Keyword searches will be developed by Plaintiff and Defendant in order to capture the Works, the removal of the Works, and the use of BitTorrent.
(2) Mr. Paige will identify how and disable all preview functions in his forensic software, in order to avoid viewing the content of the hard drives while he performs the keyword searches.
(3) After performing the agreed upon keyword searches, Mr. Paige will produce a file list of the files containing the results of those keyword searches.
(4) After creation of a privilege/relevance log by Defendant, Mr. Paige will be permitted to view the contents of the remaining file contents.
(5) Mr. Paige will produce a log of all search activities he performed so that to the extent evidence of the Works, deletion thereof, or BitTorrent use is found, Defendant will be able to duplicate exactly what Mr. Paige did to find such information.
This is not a difficult (or unreasonable) thing for Troll/Plaintiff/Mr. Paige to do. EnCase is a very versatile forensic application which unless I’m mistaken, will automatically log ALL search activities from start to finish. The proposed keyword list will cover the titles of the X-Art movies, BT applications, and the possibility of data destruction. The Defendant even obtained the services of a very experience forensic consultant (Robert Kelso, Forensic Pursuit, CO) to support Defendant’s PO. Doc_67-12_02385(CO)
Now I’m sure troll/Plaintiff is going to make some sort of reply that states “Well If Defendant did this… or this…Mr. Paige needs to be able to do this…” in an attempt to expand the search as far as possible, but I can’t see the court giving in at this time. Hell, they haven’t even deposed the Defendant (as of the filing of Doc #67).
The Question Of Credibility
One thing I did notice in Exhibit C (Doc_67-3_02385(CO)), was that attorney Lindvig, told the court she has some concerns with Mr. Paige’s credibility (but it hasn’t been raised at this time) – bottom of Page 6, EX. C. She mentions it deals with his drug arrest – top of Page 7. Please see my previous post on this. On 8 Mar 2011, “Detective Paige” was booked for possession of a control substance without a prescription. Yes, he was a Detective with the Palm Beach County Sheriff’s Office (PBCSO), FL. Note: The judge did say that this issue might not be relevant to the case.
That will most likely depend on how attorney Lindvig presents it. If she focuses ONLY on the alleged criminal act (buying drugs), then it is certain to be brushed aside. The point I would focus on is Mr. Paige’s credibility and trustworthiness in regards to HOW he allegedly made an illegal purchase of a controlled substance. Based off of the limited news report and arrest mug shot, Detective Paige allegedly used an Official PBCSO online undercover account (and undercover persona) to order Vicodin. The drugs were mailed to a PBCSO undercover post office box his office used to investigate criminal activity. Who knows, maybe he even used the “Silk Road” to do this??? The drugs were allegedly sent by a UPS Next Day Air package. It appears that following the arrest, Detective Paige was placed on administrative leave and eventually left employment with the PBCSO – it is possible he was asked to retire and spare the PBCSO further embarrassment. If anyone can obtain a copy of the arrest report (and if an investigation was done), it would be greatly appreciated. I would not be surprised to learn that Mr. Paige was given a sweet deal if he simply retired.
This was ALL allegedly done while Detective Paige worked in PBCSO’s Computer Crimes Unit. He appears to have/had “trust” issues with abiding by rules/laws/ethical standards expected (and demanded) of a law enforcement officers and public servants. The issue at hand IS does Mr. Paige have those ethical problems that would allow him to ignore the CO court’s order and exceed the scope of the search into areas and by methods not authorized? I’m of the opinion that based on this incident and the fact he now works for a notorious BT Copyright Troll, that ethics are not his strong suit. To Mr. Paige – If you would like to refute/correct any of this, please feel free to email me at email@example.com. I think Mr. Paige does owe the court an explanation of the incident and set the record straight. This issue is not likely to go away for Troll/Plaintiff.
What Is Next?
I assume Troll/Plaintiff will file some sort of response and then hopefully the court will lay down the law with regards to the PO. Of course Troll/Plaintiff would love to have the hard drives to examine prior to any depositions or further discovery. They are likely of the opinion that if evidence is found early on, they will have a better chance of forcing a settlement prior to having to make any discovery disclosures/depositions on their part. This looks interesting and I expect more shenanigans from Troll Lipscomb’s camp.
DieTrollDie 🙂 “It’s not our job to—there was no evidence against us! I think everyone, even the people that dislike anti-piracy litigation, would agree that I don’t have to answer questions if I don’t want to. That’s my right. The fact that people take the Fifth Amendment, against compelled testimony, is not allowed to be a negative inference.” [John Steele (Prenda Law) Interview, ArsTechnica]