Prenda Law: Let The Other Shoes Hit The Floor

from the here-comes-everybody dept

Ken White blogs at Popehat. He's a litigator and criminal defense attorney at Brown White & Newhouse LLP in Los Angeles. His views are his alone, not those of his firm.

All of my coverage of the Prenda Law saga is collected here.

Last week I described how Prenda Law principals John Steele, Paul Hansmeier, and Paul Duffy asserted their Fifth Amendment right against self-incrimination rather than answer a federal judge's questions about Prenda Law's litigation campaign. I predicted that attorneys defending against Prenda Law cases would begin to use that assertion against Prenda. Behold: they have.

Georgia On Their Mind

We begin in in the Northern District of Georgia, where AF Holdings LLC brought suit against a Mr. Patel. AF Holdings' local counsel voluntarily dismissed the case on March 18 as part of Prenda's wave of dismissals. Too late, too late. Mr. Patel has filed a motion for sanctions. Since AF Holdings had already dismissed, Patel was forced to rely — as I explained — on the court's inherent powers.

Patel's Motion is a blockbuster. It weaves together information and documents from cases across the country to present its argument against Prenda law and its lawyers. The exhibits to the Motion are here: Exhibit A, Exhibit B, Exhibit C, Exhibit D, Exhibit E, Exhibit F, Exhibit G, Exhibit H, Exhibit I, Exhibit J, Exhibit K, Exhibit L, Exhibit M, Exhibit N, Exhibit O, and Exhibit P. Among the most notable exhibits are transcripts. Exhibit C is the transcript of the utterly bizarre Florida hearing involving John Steele and Mark Lutz; Exhibit F is a transcript of the jaw-dropping March 11, 2013 hearing before Judge Wright at which Alan Cooper and Brett Gibbs testified, and Exhibit G is a transcript of the April 2 hearing at which Prenda's representatives took the Fifth. These are, on their own, very powerful, for reasons I have discussed before.

But that's not all. Patel has also submitted documents illuminating the conduct and seemingly inconsistent statements of various Prenda Law attorneys. Patel shows a pleading electronically "signed" by "Salt Marsh," one of the elusive figures behind Prenda Law's purported clients — it was also purportedly e-signed by Brett Gibbs. Patel shows that in January 2012, John Steele's attorneys wrote to the Florida State Bar on his behalf representing that "Mr. Steele is actually a client of Prenda — Mr. Steele maintains an ownership interest in some of Prenda's larger clients." It's difficult to reconcile this admission with Mr. Steele's assertion at the April 2 hearing that the attorney-client privilege would prevent him from answering questions about Prenda Law's clients. There's also a rather hilarious quote from a March 15, 2013 email on behalf of Prenda. The Motion doesn't make it clear whether this email was sent by Prenda local counsel or a Prenda principal:

I understand that there is an insane liberal group which is flying around Mr. Alan Cooper for its own benefit. This group is akin to "Anonymous". It doesn't believe in copyright laws. It does believe that computer hacking should be legal. I'm not certain if these southern courts (unlike liberal San Francisco Courts) will hold the same beliefs that this crazy "its ok to hack websites" group holds.

Bear in mind that assertion about the Electronic Frontier Foundation was uttered four days after Alan Cooper testified that his name had been misappropriated by Prenda and that John Steele had left him threatening voice mail messages when he complained. Whoever sent that email either isn't following what is going on, or believes he can bluff it out. Good luck with that.

Patel's motion is well worth reading for anyone interested in an exposition of the growing evidence concerning Prenda Law.

Annoyed In Illinois

Prenda's troubles don't end in Georgia.

In Illinois, Prenda — using its putative client "Lightspeed Media Corporation" — filed state law claims. One defendant — a Mr. Smith — removed the case to federal court in the Southern District of Illinois. Prenda recently began to retreat in that case — Paul Hansmeier and John Steele moved to withdraw, leaving Paul Duffy holding the bag. Duffy, in turn, dismissed the case during the great strategic repositioning of March 2013. Once again, they were too late.

Smith has filed a motion seeking attorney fees as a sanction. The exhibits to the motion are here: Exhibit A, Exhibit B, Exhibit C, Exhibit D, Exhibit E, Exhibit F, and the Forbes article attached as an unlettered exhibit.

Smith is represented, in part, by Jason E. Sweet of Booth Sweet LLP, who also represents Alan Cooper and Paul Godfread in the defamation litigation Prenda recklessly brought against them. Sweet was responsible for what I called a Perry Mason moment during the March 11 hearing; he stood up from the gallery to tell Judge Wright that Brett Gibbs had, in fact, represented himself as "national counsel" for Prenda. Sweet knows the case and knows Prenda, which shows. The Smith motion is a helpful addition to the Patel motion: it focuses more on Prenda's methods of identifying defendants, it attacks Prenda's state law theories, and then it piles on with Prenda's recent misfortunes in courts across the country. A representative sample of the latter:

Steele, Hansmeier and Duffy have orchestrated a nationwide campaign through Prenda Law and other related entities that several courts have found extends beyond vexatious litigation into fraud on the court. For one example that beggars description, Duffy, a prinicpal of Prenda Law, wrote a letter to the court disclaiming any role in representing the plaintiff, a Prenda Law client, though Prenda Law’s local counsel admitted having been retained to represent the plaintiff by Prenda Law principal Brett Gibbs. Hr’g Tr., Sunlust Pictures, LLC v. Nguyen, No. 12-cv-1685, pp. 10-12 (M.D. Fl. Nov. 27, 2012) (Exhibit D hereto). Mark Lutz, formerly a Prenda Law paralegal, represented himself as the plaintiff’s “corporate representative,” but conceded that he had no knowledge of the corporate officers and was paid on a contract basis to make courtroom appearances as a corporate representative for Prenda Law plaintiffs, including Hard Drive Productions and Guava LLC. Id. pp. 13-17 (misidentifying Mr. Lutz as “John Lutz”). The Sunlust Court dismissed the case from the bench “for failure to appear at this hearing, for failure to present a lawful agent, for attempted fraud on the Court by offering up a person who has no authority to act on behalf of the corporation as its corporate representative.” Id. p. 20. Steele, who happened to be present at the hearing, represented to the Court, “I don’t represent Sunlust or anybody anymore. I no longer actively practice law. … I do appear occasionally at hearings on an ad hoc basis, but I do not have any current clients.” Id. p. 19. (At the time, Steele was listed as lead counsel in this action.)

Ouch.

Prenda's Dilemma

Here's the dilemma of Prenda Law's principals: they can't both take the Fifth and fully respond to motions like these. They can't assert good faith and explain seeming inconsistencies without submitting declarations. If they want to continue to refuse to answer questions, they can only respond with legal arguments and bland generalities.

Paul Duffy has just tried that in San Francisco. In response to a raucous motion for fees in an AF Holdings case in the Northern District of California, Paul Duffy has responded with a dry and academic argument about the circumstances in which the Copyright Act permits a court to award fees to a defendant. Duffy's response is not badly written, and doesn't seem to be wrong on the law, but it's not at all the response you'd expect from a lawyer being accused of what amounts to a nationwide criminal enterprise. It's like someone said "Ken, I have it on good authority that you routinely molest squirrels in a public park near your house," and I responded "your accusation is without merit because that park is private."

Paul Duffy, and Prenda Law, might get lucky, and courts might summarily ignore or deny the sanctions and fees motions. But if any judge seeks to make an inquiry even a fraction as involved as Judge Wright has, then Prenda Law and its principals will find themselves choosing between warding off sanctions and maintaining their prudent silence.

This is only the beginning. Stay tuned.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Ninja (profile), Apr 9th, 2013 @ 9:43am

    "Ken, I have it on good authority that you routinely molest squirrels in a public park near your house," and I responded "your accusation is without merit because that park is private."

    When they are not on their meds things can get pretty ugly Ken, don't underestimate them.

    On a more serious question isn't this dragging around for too long? I mean isn't there any judicial limit to how much they can evade the questions and pretend they did nothing wrong?

     

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  2.  
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    Anonymous Coward, Apr 9th, 2013 @ 11:39am

    Thank Prenda Law.

    I now understand Washington DC.

    And!

    I have unfortunately reached the conclusion that six guns at high noon is a more civilized method of settling disputes.

     

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  3.  
    identicon
    Anonymous Coward, Apr 9th, 2013 @ 11:39am

    Re:

    lol, this is america. if it gets settled this decade i'll be impressed.

     

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  4. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Apr 9th, 2013 @ 11:39am

    Watching you guys cream your pants at the thought of a pro-copyright lawyer getting in trouble is priceless. Drooling over the slightest details... Tell us again how the judge ran his tongue across his teeth, Ken. OMG! I can't wait to see what happens next! Tell us more about all the possible bad things that will happen to them! But, God forbid, if any anti-copyright person gets in trouble... Then let's focus only on all the excuses we can make for their behavior. I don't want any details about what they did--details suck! Just tell me what I need to know to argue that they did no wrong.

    Snore.

    Glad you're getting some goodwill out of this, Ken. It's not the type of goodwill I would seek, but I'm happy for you nonetheless.

     

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  5.  
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    Anonymous Coward, Apr 9th, 2013 @ 11:43am

    Re:

    You clearly haven't done your homework.

     

    reply to this | link to this | view in thread ]

  6.  
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    crade (profile), Apr 9th, 2013 @ 12:02pm

    Re:

    There are plenty of reports of good people getting into trouble. It's more fun when bad people get into trouble.

     

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  7.  
    identicon
    Anonymous Coward, Apr 9th, 2013 @ 12:09pm

    Re:

    No, it's the illegal activities that make me cream my pants. Y'know, like the wilful ignorance of a STOP order, or the ignoring court Summons notices. Or, hell, even the "fraud on the courts" made by Steele.

     

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  8.  
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    Ken, Apr 9th, 2013 @ 12:10pm

    Re:

    Primus: I am not wearing pants, smartass. Secondus: I am very sorry you are being forced to read this. That's cruel. Tertius: if any anti-copyright person gets in trouble in ways that illuminate problems with the legal system, or allow me to explain it in the context of a story that interests people, maybe I'll write about it.

     

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  9.  
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    crade (profile), Apr 9th, 2013 @ 12:12pm

    Re: Re:

    problem is, they aren't even in trouble because of what they did, but just weren't careful enough about how they went about it. They are obviously crooks, thats the sort of people who would be in the extortion business, but it's actually perfectly legal to extort people the way they were trying to do as long as you dot your i's and cross your t's properly. :(

     

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  10.  
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    Violated (profile), Apr 9th, 2013 @ 12:13pm

    The Burden of Justice

    The one thing today has taught me is that I would hate to ever be a Judge.

    So on the first case there all of 16 documents were submitted as evidence where the first document alone is nearly 300 pages long. The Judge who has to read that lot will hate the lawyer who filed these until the day (s)he dies.

    The ongoing demise of Prenda may be riveting but remember to be gentle on the Judges.

     

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  11.  
    identicon
    Anonymous Coward, Apr 9th, 2013 @ 12:14pm

    Re:

    See you made a mistake here. Not many here are actually anti copyright, we just believe that copyright shouldn't be used to bully artists, hamper innovation and ruin lives. I think that everyone has a different degree of copyright in mind, but I think that most agree that it should be lessened severely.
    And the reason we follow this case so rigorously is that this might just be the one that could open peoples eyes towards the abuse taking place using these tools and the length these people are willing to go for money (lying, fabricating signatures, fraud and so much else).
    We have seen too many times that people don't get a fair trail(and they do deserve that, guilty or not) with a default judgement that will not only put them in prison, but also make their lives hell, trying to pay INSANE fines afterwards, for what most people consider a minor crime.
    A judge actually took the time and looked at the case and saw it was rotten, like so many are, and we celebrate this.

     

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  12.  
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    Ninja (profile), Apr 9th, 2013 @ 12:14pm

    Re: Re:

    *hats off*

    You, sir, are doing it right.

    Also

    Secondus: I am very sorry you are being forced to read this. That's cruel.

    Indeed. Must be some kind of disorder to hate something and keep reading it. I personally don't read the MAFIAA blogs or crap like that Trichordist (unless I want to understand what an article making fun of their stupidity is all about).

     

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  13.  
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    Ninja (profile), Apr 9th, 2013 @ 12:15pm

    Re: Re:

    That made me smile while looking at my own legal system.

     

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  14.  
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    Rikuo (profile), Apr 9th, 2013 @ 12:32pm

    Re: Re:

    Precisely. I'm more than likely the most rabid anti-copyright person here on Techdirt, but if the following were true, you wouldn't hear a peep from me about it

    1) Those accused always get a chance in court
    2) Those making the accusation are punished when it is revealed they made the accusation in bad faith
    3) Those accused are allowed use all the possible defences as listed under the law, no agreements between two parties stripping legal defences from a third party who is not part of that agreement
    4) Copyright not used as a weapon to force censorship of works
    5) Works not taken down under copyright claims until after a fair court hearing
    6) Copyright length terms are much shorter and different for each category of work (for example, copyright terms for video games being much shorter would mean that Sega wouldn't be able to use it to force the takedowns of old game footage
    7) All works must be registered with a clear paper-trail. If you want copyright protection in multiple countries, then register in each country. I don't see why the police of Countries C, D, and E have to expend tax-payer funded resources defending copyrights if the holder only registered in Countries A and B.
    8) If there is no clear paper-trail, then works are automatically declared public domain which is irrevocable.

     

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  15.  
    identicon
    Anonymous Coward, Apr 9th, 2013 @ 12:36pm

    Re:

    I was about to holler at Ken when I saw that he had copied verbatim that line about the squirrels in the park from someone's comment on another site I visit. But then I double-checked the comment and saw that the person posted it has the username"Ken White"

    :)

     

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  16.  
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    Rikuo (profile), Apr 9th, 2013 @ 12:36pm

    Re: Re:

    Primus, Secondus, Tertius...are you a Commissar from the Imperium of Man. How goes the war against the Orkz?

     

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  17.  
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    Wally (profile), Apr 9th, 2013 @ 12:36pm

    Shortened up

    "Here's the dilemma of Prenda Law's principals: they can't both take the Fifth and fully respond to motions like these. They can't assert good faith and explain seeming inconsistencies without submitting declarations. If they want to continue to refuse to answer questions, they can only respond with legal arguments and bland generalities."

    Prenda Law's principals painted themselves in a corner by pleading the filth in this case because they will not be able to defend themselves if asked about certain details in the motions brought against them. This also keeps the judge annoyed and angry at them for being so stupid that they made it impossible to try to defend themselves.

    Mr. White, I am wondering about one thing....is there a chance that Prenda would be ballsy enough to attempt a declaration of mistrial because of the lack of the ability to defend themselves (however poorly) sufficiently.

     

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  18.  
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    Anonymous Coward, Apr 9th, 2013 @ 12:41pm

    Re:

    "Watching you guys cream your pants at the thought of a pro-copyright lawyer getting in trouble is priceless."

    If Prenda is your idea of a "pro copyright lwyer", then you advocate near-criminal (if not criminal) actions on behalf of copyright holders, boy.

    Which means you consider "pro-copyright lawyers" criminals.
    How do you justify supporting criminals, boy?

     

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  19.  
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    Anonymous Coward, Apr 9th, 2013 @ 1:06pm

    So I've replaced my popcorn with beer when it comes to Prenda. Somehow I have a feeling I'll be a full blown alcoholic by the time this is over.

     

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  20.  
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    madasahatter (profile), Apr 9th, 2013 @ 1:44pm

    Re: Re: Re:

    I would add that copyrights and patents be used for their Constitutional purpose which to promote the advancement of "arts and sciences". This implies there are whole categories of works that should not be eligible for copyright or patent protection.

    The length of a copyright is definitely excessive. With a few exceptions most works (software, music, movies, books, etc) make almost all their money in the first few years after release. My guess is 95%+ of all sales occur within 5 years after release so a copyright of 15 years non-renewable would not affect the incomes or profits for the vast majority.

     

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  21.  
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    Matthew Cline (profile), Apr 9th, 2013 @ 2:07pm

    Re:

    I can already hear your liver screaming in agony.

     

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  22.  
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    Digdug (profile), Apr 9th, 2013 @ 2:14pm

    Re: Re: Re:

    This should be stickied somewhere as a reference for future discussion, very nice.

     

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  23.  
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    Anonymous Coward, Apr 9th, 2013 @ 2:38pm

    Re: Re:

    That is the whole hilariously insane ironic part in this whole thing. They punish small crimes hard in order to "protect the artists", but in order to do that, they shit on the artists, commits way worse crimes and ruins society.
    I am so torn whether to insanely laugh out loud or get depressed.

     

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  24.  
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    Ken, Apr 9th, 2013 @ 2:58pm

    Paul Hansmeier has now filed a brief.

     

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  25.  
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    Anonymous Coward, Apr 9th, 2013 @ 3:49pm

    Re: Shortened up

    pleading the filth?...Your honor I can't come to court...because I need a bath!!!

    there...Prenda's new legal argument sorted....

     

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  26. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Apr 9th, 2013 @ 3:59pm

    Re: Re:

    Primus: I am not wearing pants, smartass. Secondus: I am very sorry you are being forced to read this. That's cruel. Tertius: if any anti-copyright person gets in trouble in ways that illuminate problems with the legal system, or allow me to explain it in the context of a story that interests people, maybe I'll write about it.

    Plus one for the ordinals in Latin! I look forward to your piece condemning *anyone* who is anti-copyright. It won't sell on TD, but I'll buy it! There's so many anti-copyright dirtbags to choose from--surely you can tell us about the judge's tongue movements there too. Let us know about what the judge had for lunch and the color of his/her shoes too, if you don't mind. I bet their brown! I'll make some popcorn. Should I use butter? OK, why not!

     

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  27.  
    identicon
    Anonymous Coward, Apr 9th, 2013 @ 6:28pm

    Re: Re: Re:

    It's hilarious that in order to enforce your precious copyright, your glorious heroes have to tread gray areas of the law, or just outright break it. Repeatedly. So you claim that the RIAA was justified in masquerading as the grandmother of Tanya Andersen's daughter when they called her up at kindergarten to get her to say her mother was guilty, when Andersen was later proven innocent of all charges of downloading music?

    Your kind is an absolute joke and insult to any human being with rationale and decency.

     

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  28.  
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    Niall (profile), Apr 10th, 2013 @ 5:12am

    Re:

    I suspect this is how Prendass & Co think 'reality' is, and they are the 'plucky sheriffs'.

     

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  29.  
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    Niall (profile), Apr 10th, 2013 @ 5:13am

    Re: Re:

    Let me introduce you to my good friend, Herr Schaden Freude...

     

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  30.  
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    Niall (profile), Apr 10th, 2013 @ 5:14am

    Re: Re: Re:

    What? Trichordist isn't a Poe Site? Wow... ;)

     

    reply to this | link to this | view in thread ]

  31.  
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    Niall (profile), Apr 10th, 2013 @ 5:16am

    Re: Re: Re:

    No, he's invoking the Modrons...

     

    reply to this | link to this | view in thread ]

  32.  
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    Niall (profile), Apr 10th, 2013 @ 5:23am

    Re: Re: Re: Re:

    Yes, it's funny how thsy are all over "for the arts and sciences" when trying to block 'obscene' works, but then think a factual legal filing or government form requires 'copyprotection'...

     

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  33.  
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    Pedantic Peter, Apr 10th, 2013 @ 5:53am

    Missed one...

    I think that you need to be able to tell *on the face of the item* whether it is copyrighted or not. That would mean a strict labeling requirement, much like in the US before 1978. None of this "life of the author + N years" where N varies as to whether the author is a human or a corporation.

     

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  34.  
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    OC, Apr 10th, 2013 @ 10:19am

    In other words, pleading the 5th is the Squirrel Defense? :)

     

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  35.  
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    Julian Perez, Apr 11th, 2013 @ 2:46am

    Re: Re: Re: Re:

    Please tell me you mean the late, lamented Portal of Evil.

     

    reply to this | link to this | view in thread ]


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