Prenda's Mark Lutz Doesn't Show Up In Two Key Cases, Has A Reason But Won't Share Because People Might Discuss It

from the that's-not-how-it-works dept

So we had already mentioned in our coverage of the hearing in the Prenda/AF Holdings v. Navasca case that Prenda's Mark Lutz (who, depending on who you talk to is one or more of the following: a lowly paralegal, the mastermind behind AF Holdings, a total patsy, a clueless "corporate representative or more) didn't bother to show up, even though Prenda's Paul Duffy told the court he knew Lutz was in San Francisco and planned to attend. It took an entire week but Duffy has now filed a request with the court to explain why Lutz couldn't show up, but wishing to do so under seal, for fear that people might actually comment on the story.
Mr. Lutz attempted to travel to San Francisco, California from Miami Beach, Florida in order to testify as a witness at the August 28 hearing. HE has informed counsel for Plaintiff that, for reasons beyond Mr. Lutz’ control, he was unable to board his plane from Miami Beach to San Francisco.

Mr. Lutz thus indicates that he attempted in good faith to be present as a witness at the August 28 evidentiary, and that he wishes to explain to the Court the reasons for his absence, but the reasons are of a very sensitive nature and would expose Mr. Lutz to undue scrutiny, particularly in this case, where counsel for Defendant has artificially publicized its importance throughout the country.
You know, that's the nature of court cases. You do stuff, and the information is made public so that people can appreciate the law. Furthermore, the fact that it took an entire week for Duffy to ask the court to seal this reason seems pretty questionable as well. From the statements made by others in the courtroom, it sure sounds like Duffy lied to the court in saying he knew Lutz was in town. Lutz clearly knew long before the hearing that he wouldn't have been able to attend. A flight from Miami to San Francisco is over five hours long, and somewhere during those hours when Lutz was not on the flight, you'd think perhaps he would have called Duffy and told him he wouldn't be able to attend. Furthermore, after the hearing was over, wouldn't it be normal to expect such an explanation (or even the request to seal it) to come very soon after (as in that day or the next day) rather than wait an entire week?

Of course, this wasn't the only major Prenda lawsuit where Lutz was completely MIA. In the Patel case in Georgia, which we've written about a bunch as well, Lutz had been served by Patel's lawyer Blair Chintella and ordered to show up for a deposition in Georgia on August 21st. He didn't show. Nor did he (or AF Holdings' lawyer, Jacques Nazaire) tell Chintella that Lutz wouldn't make it. Nor did he file with the court for reasons why he shouldn't have to give a deposition. He just didn't show. Chintella has now filed for sanctions over Lutz's failure to show, which is the proper response. Suddenly Nazaire woke up and opposed the motion claiming that Lutz shouldn't have to be deposed, because people would make fun of him.
Additionally, Mr. Lutz has every reason not to appear for a deposition. The deposition is sought out, not for seeking discoverable evidence, but rather to ridicule him. Please see the attached Exhibit A which shows that all the private legal matters in this action are being displayed on a twitter account or feed for fodder.

The attached exhibit demonstrates that any new deposition of Mr. Lutz or any interrogatories or any production responses will be sought solely for the purpose of providing a good laugh for the websites such as “Popehat”, “dietrolldie” and “fightcopyrighttroll”. (See twitter feed attached as Exhibit A).
While I'm only marginally annoyed that Techdirt got left off that list (in Nazaire's last filing, Techdirt was on the list, but FightCopyrightTrolls was not...), the reasoning here is laughable on so many levels. First off, you don't file an opposition after the date of the deposition (actually many weeks later) after not showing up. You do so before. Second, this is not a "private legal matter," it's a public legal matter taking place in the federal court system, and impacting copyright law across the country. Third, Prenda seems to be admitting in this case that it's seeking to not be deposed because there might be public discussion about the case -- which is a pretty big no-no right at the time they're facing an anti-SLAPP claim in another case, arguing that they've been trying to silence public discussion of their legal actions. To have one of their own lawyers basically admit that in another court... yeah, probably not the wisest strategic move.

Oh, and as for the touted exhibit A, which Nazaire insists will prove why Lutz shouldn't have to be deposed, it's quite a filing. Basically a bunch of random tweets (including a few from myself) discussing this and many other issues, some of which have nothing at all to do with Prenda, Lutz, Nazaire or the case at hand. For example, there's a tweet from Andrew Norton about picking up his DragonCon badge and then a few from Kurt Opsahl and Blair Chintella discussing Ed Felten's recent amicus brief in the ACLU's lawsuit over NSA surveillance. What that has to do with Prenda, Lutz or Nazaire I have no idea. There are others as well, including a link to more Ed Snowden links, an article about Blizzard's Diablo III expansion Reaper of Souls (perhaps Nazaire thinks that's a commentary on Lutz as well?), a tweet about Bradley Manning's sentencing and much much more that has nothing whatsoever to do with the case, but rather with general legal news.

But even the tweets that are about Prenda/AF Holdings/Lutz are just basic public participation and discussion about a public legal matter -- discussing the legal news, like all those other tweets. To claim that this is some sort of evidence as to why Lutz shouldn't have to show up for a deposition is just wacky. That's not how the law works.

Either way, Lutz has mostly been able to remain under the radar in many of these cases, with Steele, Hansmeier and Duffy taking much of the heat. He did show up in Judge Wright's court room, but was basically ignored. And, of course, there's still the infamous "who's on first" routine that Lutz was a part of last year in Florida, but that was just the very first crack in the facade which has since come tumbling down. Sooner or later he's going to have to come out of hiding, even if it means that the public might comment on his actions.

Update: And... just as we posted this comes the news that Magistrate Judge Vadas has denied Duffy's motion, meaning that they'll have to file an explanation for why Lutz missed the hearing publicly. From the ruling:
The second ex parte application asks for permission for Mark Lutz to file an affidavit under seal addressing the issues AF Holdings was ordered to address at the evidentiary hearing, and explaining why Lutz did not appear at the hearing. The second ex parte application is denied on the ground that the August 28, 2013 evidentiary hearing was an adversary proceeding; allowing Lutz to file an affidavit would deprive defense counsel from cross-examining, which would be unjust. In addition, if Lutz wanted to explain his absence from the hearing, and AF Holdings’ failure to address the issues the court ordered it to be prepared to address, he should have done so much earlier.










Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Anonymous Coward, Sep 6th, 2013 @ 3:11pm

    So, who bets Lutz could not fly out because he ended up on the no fly list?

     

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  2.  
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    Dark Moe, Sep 6th, 2013 @ 3:21pm

    That's not fair! I guessed that one yesterday. Please put me in Exhibit A.

     

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  3.  
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    Namel3ss (profile), Sep 6th, 2013 @ 3:21pm

    So...

    When can we expect contempt of court rulings and jail time for this assclown? Or any of the Prenda assclowns for that matter?

    Inquiring minds want to know.

     

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  4.  
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    Digdug (profile), Sep 6th, 2013 @ 3:23pm

    Re:

    That would require that DHS has a sense of humor, which we all know to be false.

     

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

  5.  
    identicon
    S. T. Stone, Sep 6th, 2013 @ 3:26pm

    Dear Prenda Law:

    If you want to prevent people from ridiculing you and having good reason for doing so, stop doing things that will give people a reason to ridicule you.

    A list of such things includes, but does not limit itself to, the following:

    • Suing people
    • Not showing up in court
    • Not defending yourself with any level of competence
    • Not accepting your due punishment
    • Tossing the legal equivalent of a temper tantrum
    • Existing

    I hope you take this advice to heart and learn to act in a mature, rational maaaaaaaaaahahahaha who am I kidding y’all just keep being idiots.

    Sincerely,

    S. T. Stone

     

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  6.  
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    sophisticatedjanedoe (profile), Sep 6th, 2013 @ 3:37pm

    By the way, page 10 of the mentioned twitter feed has a sub-story by its on, a story that any decent attorney would do everything to hide, a story that even prompted Popehat to wake up from his Prenda-Hiatus.

     

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  7.  
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    DB, Sep 6th, 2013 @ 3:47pm

    Lutz is more of a bill collector for Duffy's law firm rather than a paralegal or corporate executive. Pretty much "telephone muscle". Evidence suggests that Duffy hired him during a rough period where Lutz was fighting DUIs and arrests for driving with a suspended license -- some of those warrants are still outstanding.

    Lutz continued his telephone role when Duffy (AKA Prenda Law) bought into Steele and Hansmeier's shake-down scheme. For the cases Prenda pursued directly (which meant that didn't have to split proceeds with local attorneys), Lutz was often the one on the phone making threats to cost the targets 'everything they owned' in legal fees if they didn't settle.

    Lutz was only presented as a corporate figurehead when the Prenda lawyers had to pretend there was an actual client. They couldn't put up a lawyer, as that would be quickly found out. But even then Prenda couldn't rely on Lutz and always had to have support sitting behind him, whispering answers in his ear. (Quite literally in the Florida case.)

    It should have been predictable that Lutz wouldn't show in San Francisco. Or voluntarily in any case or deposition. Prenda can't allow him to be questioned without limiting the questions and rehearsing the answers.

     

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  8.  
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    Anonymous Coward, Sep 6th, 2013 @ 4:03pm

    "I refuse to show up because people talk on the internet"

    *deadpan

     

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  9.  
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    Anonymous Coward, Sep 6th, 2013 @ 4:14pm

    There once was a man named Mark Lutz
    Who made calls with incredible guts.
    But when told to appear
    He would choose to steer clear.
    Guess the guy's got some balls...or peanuts.....

     

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  10.  
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    Anonymous Coward, Sep 6th, 2013 @ 4:19pm

    Lultz for the LULZ

     

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  11.  
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    DB, Sep 6th, 2013 @ 4:24pm

    A added note: Notice that the only natural person originally associated with AF Holdings was a mystery 'Alan Cooper' with an Arizona address associated with Steele. That started falling apart at the beginning of 2013. Prenda couldn't very well have the real Minnesota Cooper deposed, so they threw attorney Hansmeier up as the corporate representative.

    Using Hansmeier was _great_ idea. He wasted 8 hours with non-answers, making it obvious that further efforts would be an expensive dead end. It was so effective that it left no doubt as to where the bodies were. But even saying nothing risks revealing info. With no time to construct a back-story, Hansmeier used Lutz's name in the deposition. That may have been a spur-of-the-moment decision, or forced by circumstances -- they simply didn't have any other person to use.

    From that point on Lutz was doomed to be the front man, not just the "1099" corporate representative that didn't know where his own poorly-signed check was from.

     

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  12.  
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    Jessie (profile), Sep 6th, 2013 @ 4:57pm

    I've been curious if the reason he was unable to board the plane is he found out there was a layover somewhere there was a warrant for him.

     

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  13.  
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    JT, Sep 6th, 2013 @ 5:06pm

    Public Prenda

    It's ironic that Prenda's business model depended in large part on threatening to embarrass defendants in the public forum of federal court. On second thought, maybe not so ironic anymore as tiresome.

     

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  14.  
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    Completely Anonymous, Sep 6th, 2013 @ 6:50pm

    It's more likely that he was "tired and emotional".

     

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

  15.  
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    sorrykb (profile), Sep 6th, 2013 @ 7:18pm

    It's all connected

    Basically a bunch of random tweets..., some of which have nothing at all to do with Prenda. ... DragonCon ... ACLU ... NSA ... Ed Snowden ... Diablo III ... Manning...

    Which only proves (to the PrendaMind, at least) that those who oppose them are a bunch of terrorist-loving anti-social dangerous fans of violent video games.

     

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  16.  
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    Anon E. Mous (profile), Sep 6th, 2013 @ 7:29pm

    Look we all know Duffy is not being forthright with the court in this case, that is pretty much a given. Duffy implicitly told the Judge that Lutz would appear knowing full well he would not.

    If Duffy knew Lutz wasn't going to show, he would have informed the court forthwith like any lawyer would do as called for by his being an officer of the court.

    The mere fact that Duffy knew full well Lutz wasn't going to appear is more of the games Prenda plays with the Legal System and the Courts it has cases before.

    We all know there is no way Steele, Hansmeier and Duffy are going to let Lutz sit in court and try and survive questioning from Defense Lawyers representing clients sued by Prenda and it's so called "clients".

    Steele, Hansemeier and Duffy needed the week to file a response because they had to get the lie they were going to tell the court straight before they told it, so they don't end up with egg on their face like when Steele makes a comment and then it comes back to bite him in the ass (how's that uploading files going John?)

    Nazaire knew as well that Lutz wasn't going to appear in that case as well. If Nazaire didn't know why wouldn't he have piped up to the court that he didn't know where Mr.Lutz was to save himself getting into more sanction trouble with the court.

    Prenda's tactics in courts where Judges are looking into the fact of the cases Prenda has before it are always to deny, deny, deny and delay, delay, delay to buy time needed to file an appeal, file a motion to get out of whatever the trouble they are in or to simple file motions to challenge what ever the court or defense is seeking to find information wise.

    Steele, Hansmeier and Duffy will not let Lutz near a court and have to give SWORN testimony and answer anything under oath. Can you imagine Lutz trying to answer questions about AF Holdings where he is supposedly the CEO and all of the trusts, entities and LLC's that are involved here?

    Please, Lutz couldn't even get thru a simple Q&A question session with the Judge in the Florida case as he was trying to pass himself off as a corporate representative of Sunlust Pictures.

    Let's have a look at how well Lutz did in answering the Questions the Judge had in the Sunlust case Prenda filed in Florida:

    HE COURT: Mr. Lutz, you're under oath, you have to give truthful answers or you face penalties of perjury. Do you understand that?
    MR. LUTZ: Yes.
    THE COURT: What is your position with Sunlust?
    MR. LUTZ: I'm a representative of them.
    THE COURT: What does that mean?
    MR. LUTZ: Corporate representative.
    THE COURT: What does that mean?
    MR. LUTZ: They asked me to appear on various matters throughout the country.
    THE COURT: Are you an officer of the company?
    MR. LUTZ: I'm not, no.
    THE COURT: Are you authorized to bind the company to any legal contracts?
    MR. LUTZ: I am not.
    THE COURT: Are you salaried?
    MR. LUTZ: No, 1099.
    THE COURT: So you are a 1099 contracted entity and you just go around and sit in a Court and represent yourself to be the corporate representative of the company?
    MR. LUTZ: Yes.
    THE COURT: Mr. Torres, did you know this was Mr. Lutz's position, a paid corporate representative?
    MR. TORRES: No, Your Honor, I did not.
    THE COURT: Who is the president of Sunlust?
    MR. LUTZ: I'm unaware.
    THE COURT: Who is the vice president?
    MR. LUTZ: I'm unaware
    THE COURT: Who is the secretary?
    MR. LUTZ: I have no idea.
    THE COURT: Who owns Sunlust?
    MR. LUTZ: I do not know.
    THE COURT: Who signs your checks?
    MR. LUTZ: I believe somebody in the accounting department.
    THE COURT: What is their name?
    MR. LUTZ: To be honest with you, I can't read the signature.
    THE COURT: Where is the accounting department located?
    MR. LUTZ: I'm sorry?
    THE COURT: Where is the accounting department located?
    MR. LUTZ: I've received checks from California.
    THE COURT: How much are you paid monthly to be the corporate representative?
    MR. LUTZ: Again, it depends on my appearances, the number of appearances that I do.
    THE COURT: How much were you paid last month?
    MR. LUTZ: Approximately $1,000.

    And let's see what the Judge though of it:

    THE COURT: You can sit away from the table, you're not a corporate representative of anybody if you don't have any information about the corporation.
    You're not an officer or principal of the corporation. The Court will exclude you as a proper corporate entity for this Defendant.


    So needless to say after that performance, I wouldn't let Lutz near a courtroom either if I was Steele, Hansmeier and Duffy. There is no way they are going to let Lutz give a whiff of testimony under oath about companies he knows barely anything about unless he feigns complete stupidity (which it seems might not be that hard for Lutz after his brilliant performance in the Sunlust cases Q&A session)

    Don't think that the Prenda gang will do whatever it takes to keep Lutz from answering anything under oath? Remember when Pietz questioned Hansmeier on one of the Northern California cases, and the deposition was about AF Holdings and how it litigates cases and who runs it and owns it?

    Hansmeier went to incredible and often comical lengths to avoid giving Pietz any useful information, in fact this went on for over seven hours of trying to evade giving any answers that could provide any light on AF Holdings.

    Hansmeier may have fared better than Lutz did in questioning, but he also declared that no one was every paid out monies out of settlement money received thru litigation and those pesky demand letters that showed up in peoples mailboxes.

    The fact that Steele has gone and made all the holding companies, and entities and LLC's and blind trusts to obfuscate who the real owners are and clients of Prenda law and the beneficiaries are of funds has only made it harder for them to keep their stories straight.

    They have changed the structures after the fact...AFTER THE FACT when people started looking closer at the real fact of the Prenda cases and the companies behind the lawsuits and the people involved in them.

    Lutz is not going to be able to anwser most of the questions thrown at him, he isn't savy enough as Steele to avoid the traps a lawyer can use in questioning a witness.

    Steele's biggest issue is his ego and the sound of his own voice and can't stand the fact that his well concocted litigation plan has gone on to wring the bowl while circling the drain.

    The mere fact that Lawyers, John & Jane Does and the internet community has delivered Steele's so well thought out scheme to score cash (well Steele thought it was so well planned anyway) has come crashing down with a resounding thud and shattered his confidence and this money making scheme.

    While Duffy has tried to minimize the damage and tried to pass himself off as a brilliant legal mind in keeping these cases from getting sanctioned any further it seems to have had the opposite effect and made Judges want to peel the layers of the onion back and see what the stench is and where it is coming from.

    I look forward to the litany of excuses Prenda will trot out to keep Lutz from having to appear and answer questions under oath.

    I am sure we will hear about Lutz being ill or dying, or of some memeber of Lutz's family being ill or dying, Lutz unable to be able to travel due to being crushed by John's massive ego negating air travel or maybe even Lutz's pet hamster or Goldfish requiring a serious operation and needing Lutz's full attention to help facilitate a speedy recovery post haste.

    I expect we will hear about how Lutz went missing ona Mexican fishing trip or hike in the mountains or how he went to some far flung country where there is now cellular or internet service, who knows we may even see pictures of this corporate hero who abstains from taking a salary or any monies to fight copyright crime and injustice appearing in some dark alley in his super hero costume fighting copyright crime.

    Could be Lutz is not able to attend court because he has received the revised Star Wars script where he will take on the role of Luke Skywalker's cousin who fight the evil empire (which will now be known as the torrent community) and their newest villain Lord Evader (they called him this because he wouldn't pay that 4.99 rental fee for that porn flick) fighting his way through the troll Galaxy here at Techdirt while defending the MPAA Empire at all costs and rescuing copyright holders from the depths of the evil empire.

     

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  17.  
    identicon
    DB, Sep 6th, 2013 @ 7:49pm

    There seems to be an assumption that Lutz will be filing a declaration about what happened, and that there will be a future hearing that Lutz must attend.

    I don't see that in the record.

    Prenda applied for leave to file a sealed statement/excuse about why Lutz didn't show, and a sealed affidavit. The court said neither wouldn't be sealed, and an affidavit wouldn't substitute because cross examination couldn't be conducted.

    Prenda isn't going to file an excuse (e.g. "week long bender, but now staying at my sponsor's house") if it doesn't get an uncontested affidavit on the record.

     

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

  18.  
    identicon
    Anonymous Coward, Sep 6th, 2013 @ 7:57pm

    Jacques Nazaire, Mark Lutz and out_of_the_blue just hate it when due process is enforced.

     

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

  19.  
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    That Anonymous Coward (profile), Sep 6th, 2013 @ 9:13pm

    WHAT IN THE NAME OF FSCK.

    I post awesome stuff about Pretenda, some gets voted insightful and this asshat submits some of my lesser work to courts. If your not going to share the good stuff, why bother Nazzy?

    But thanks for preserving the links in what you submitted you technologically inept moron, now I have another chance to say OHAI to the Judge and clerk.

     

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

  20.  
    identicon
    Trelly, Sep 6th, 2013 @ 10:05pm

    What a dummy

    Seems to me that Lutz isn't able to flap his jaw or move his eyes unless he is sitting on Uncle Johns' lap. That could be considered weird in a court of law.

    Did anyone at the Florida hearing notice if Lutz could answer while Steele was drinking a glass of water?

     

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  21.  
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    Andrew Norton (profile), Sep 6th, 2013 @ 10:25pm

    I feel I should add perhaps a slight justification for why my Dragon Con badge is there.
    I volunteer for the convention, working on the Electronic Frontier Forums track (which means I emcee a bunch of panels on law, technology, privacy and so on). One of our attending professionals is Mr Chintella (amongst other lawyers). In fact I was on panels with Mr Chintella on the 30th (discussing ISPs and 6-strikes, along with another lawyer, TJ Mihill who has also represented copyright owners), and again on the 2nd (on P2P litigation and Prenda law, Again with Mr Mihill, but also with a local public defender as well)

    I also ran a screening of TPB-AFK, and a panel on pseudonym rights,, and 3 more on British sci-fi/fantasy; while Blair was on two panels about the NSA and wiretapping with the ACLU's Chris Soghoian, using his experience in the army to give a differing viewpoint.

    So that's why Blair retweeted it, it's a hell of an event that has to be seen to be believed.
    Maybe techdirt will send a reporter down next year (there's also space, science and skeptic tracks, for things like the daily dirt0

     

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

  22.  
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    Matthew Cline (profile), Sep 7th, 2013 @ 3:33pm

    Lutz clearly knew long before the hearing that he wouldn't have been able to attend. A flight from Miami to San Francisco is over five hours long, and somewhere during those hours when Lutz was not on the flight, you'd think perhaps he would have called Duffy and told him he wouldn't be able to attend.
    To play devil's advocate: perhaps Lutz has a medical condition which acted up in a way which, for at least a span of five hours, not only prevented him from boarding a plane, but also prevented him contacting Duffy. And he wants to keep that medical condition private.

     

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  23.  
    identicon
    Anonymoose, Sep 7th, 2013 @ 6:30pm

    Re:

    Furthermore, said medical condition also incapacitated both Lutz and Duffy for more than a week after the hearing.

     

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  24.  
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    Spaceman Spiff (profile), Sep 7th, 2013 @ 8:26pm

    Re: No fly list

    Anonymous, you read my mind! :-) Wouldn't that just be a hoot!?

     

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

  25.  
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    That One Guy (profile), Sep 7th, 2013 @ 8:43pm

    Re:

    Yeah such reasoning just does not fly(much like him). In such a case the correct response would be to inform the judge as soon as possible(which would be within a day or two at most, not a week) about said medical condition flareup, and ask that the specifics aren't spread about due to privacy concerns.

    Allowing for verification from Lutz's doctor(because if it's serious enough to keep him from flying, it's serious enough to see a doctor about, and Prenda's not exactly staffed with the most honest of people), I'd see no reason that a judge would find such an explanation, or the request for secrecy as to the specific nature of the medical emergency, too out of bounds, and they would almost certainly grant it.

     

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


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