Prenda Now In Trouble In Another Case In California

from the more-popcorn dept

While Prenda is dealing with trouble down in Southern California (and Florida, and Illinois, and... ), it's run into some more problems in Northern California as well, where it tried to dismiss one of the AF Holdings cases, but the judge asked lawyer Paul Duffy (who stepped in for Brett Gibbs to appear in person) which he did yesterday. As Cathy Gellis explained in a detailed report on the hearing, it appears that (a) the judge knows what's going on and (b) Duffy put himself in a tough spot:

Paul Duffy has a problem. He's counsel of record for AF Holdings, to the extent that AF Holdings even is a client separate and distinct from Prenda Law. But in between the time he filed the motion for voluntary dismissal and now, the April 2 hearing in Los Angeles happened where he (among other Prenda Law people) plead the Fifth Amendment in refusing to answer questions about AF Holdings. This act put him in a bind: if he opened up his mouth in San Francisco to talk about AF Holdings it could inculpate him in its affairs. You can't assert the Fifth Amendment in some contexts and waive it in others, that's not the way it works. Anything he says about AF Holdings in some proceedings can and will be used against him in others.

On the other hand, as counsel to a purportedly separate and distinct client, he can't just blow off the hearing, even if that might be the best option for saving his own skin. AF Holdings, whoever it is, is staring down the barrel of a judgment on the order of tens of thousands of dollars against it. If it were truly a separate client it should be able to count on him to try to prevent such a judgment. Note: this doesn't mean the client could expect him to prevail, but it could expect him to at least give it the ol' college try. That meant that he couldn't just not show up (which apparently was what he did — or, er, didn't do — at a hearing yesterday in Illinois). He couldn't just withdraw as counsel, either, because that generally requires the court's permission once a lawsuit is underway in order to make sure a client isn't being left high and dry (see, for example, the earlier motion to substitute Duffy for Gibbs, which they needed the court to approve). Nor could he choose to just not argue, or purposefully argue badly, without abrogating his ethical duties to the client. But it was unclear what he could argue that wouldn't further implicate him in the misdealings of the Prenda Law enterprise.

Duffy, somewhat ridiculously tried to claim that the reason Prenda tried to dismiss the case was because of a claim of "spoliation" of evidence, but that was based on the highly questionable claim that CCleaner, an app for optimizing a hard drive, which had been on the computer for a while, was used to delete evidence -- something the product is not designed to do.

Either way, the judge pointed out that this argument made no sense, because if it were true, they could just argue spoliation and it would help their case, and hurt the defendants.' As the judge said:
In any case, as Judge Chen honed in on later in the hearing, usually a plaintiff is happy for there to be spoliation problems. "Normally if you argue spoliation, you win the case!" It seemed very strange, he observed, to give up because you are claiming spoliation (and, he asked later, if it really were such a problem, why did you wait to withdraw the case and not do so as soon as you learned of it?).
The judge seemed pretty clued in to the real reasons Prenda is trying to drop all its cases and run, and isn't necessarily prepared to let that happen, as he also said that he wondered if the attempt to dismiss was just an attempt to avoid an adverse ruling -- one that might open them up to having to pay fees. Yet another case to watch...


Reader Comments (rss)

(Flattened / Threaded)

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    identicon
    Anonymous Coward, Apr 19th, 2013 @ 7:11pm

    It's "spoliation." And how is CCleaner not a tool for deleting files?

     

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      Ron, Apr 19th, 2013 @ 7:22pm

      Re:

      CCleaner (in addition to it's other functions) is designed to delete temporary files from the computer cache and empty the deleted items folder. Not files in actively used folders.

       

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      Anonymous Coward, Apr 19th, 2013 @ 7:23pm

      Re:

      But it's not a tool for deleting evidence that you downloaded porn.

       

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        JackOfShadows (profile), Apr 19th, 2013 @ 7:44pm

        Re: Re:

        Set up correctly, it is quite aware of torrent file download tools so it can merrily delete any history, especially if such history and related folders are set up to land in a temp folder. You'd have to bring bigger guns to the party on the forensics side.

        Hell, on my system even that wouldn't work. Temp files here are all created from scratch in a RAM disk. Not for reason of stealth, just efficiencies of scale.

         

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      Anonymous Coward, Apr 19th, 2013 @ 7:29pm

      Response to: Anonymous Coward on Apr 19th, 2013 @ 7:11pm

      I believe that the defendant said the program wasn't used for secure deletion of files. Prendas argument was simply having the tool, even if they had no evidence of its use is proof of spoilation. Like claim having a can of gas for your lawnmower proves you are an arsonist.

       

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      Karl (profile), Apr 19th, 2013 @ 7:57pm

      Re:

      And how is CCleaner not a tool for deleting files?

      It wouldn't delete anything relevant to showing copyright infringement. It mainly works with cleaning up browser files: temporary files, cookies, history, etc. It also empties the recycle bin, gets rid of Windows error logs, removes unused Windows registry entries, and so forth.

      But it would not, for example, get rid of any files that finished downloading via the browser, nor would it touch anything whatsoever that had to do with torrent files.

      The details are here:
      http://www.piriform.com/ccleaner/features

       

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        BearGriz72 (profile), Apr 20th, 2013 @ 7:37am

        Re: Re: CCleaner CAN be a tool for securely deleting (wiping) files...

        But it is not set up that way by default, and takes some knowledge of the software & how to configure it to do that job.
        [Full Disclosure: I use Piriform's CCleaner on a regular basis, both in its default use as a tool to clean-up my HDD (& windows registry and temp files, etc.) as well as for it's ability to provide secure file deletion]

        See: http://www.howtogeek.com/113382/how-to-use-ccleaner-like-a-pro-9-tips-tricks/
        See Also: https://securityinabox.org/en/ccleaner_main
        Side Note: When CCleaner securely deletes files, it renames them with all Zs in the file name (for example, ZZZZZZZZ.ZZZ) for increased security.

        And direct from the horse's (Piriform) mouth...
        From: https://www.piriform.com/docs/ccleaner/using-ccleaner/wiping-free-disk-space
        "This means that, given the right software, someone could reconstruct all, or parts of files that you've deleted. For privacy and security reasons, you can set CCleaner to wipe the free areas of your hard disk so that deleted files can never be recovered."

        From: https://www.piriform.com/docs/ccleaner/ccleaner-settings/changing-ccleaner-settings
        "CCleaner has four methods of secure deletion: a Simple Overwrite (1 pass), DOD 5220.22-M (3 passes), NSA (7 passes), and Gutmann (35 passes). A 'pass' refers to how many times CCleaner writes over the spot on the hard drive. The more times CCleaner writes to that spot, the harder the file will be to recover by any means. The drawback is that it will take CCleaner longer to complete the job."

         

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    Alana (profile), Apr 19th, 2013 @ 7:20pm

    Such a magnificent trainwreck.

     

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    jon, Apr 19th, 2013 @ 7:30pm

    Oops on the byline sorry

     

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    Karl (profile), Apr 19th, 2013 @ 7:36pm

    Title could use some work

    Not to nitpick, but the title is really badly written... You probably shouldn't be using the word "too" twice.

     

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      Pixelation, Apr 19th, 2013 @ 9:32pm

      Re: Title could use some work

      "Not to nitpick, but the title is really badly written"

      Now, now...

      No more liquid lunches for Mike.

       

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    Anonymous Coward, Apr 19th, 2013 @ 7:42pm

    I want to see this copy of CCleaner he refers to that wipes files. I run it all the time. It's used to clear out junk files. Temp files put on your drive by the internet, logs that take up a huge amount of space over time and will eventually limit your hd size, your surfing history in your browser, cookies, recently typed urls, Index.dat files, recent run documents log, thumbnail cache, empty the recycle bin, dump clipboard memory, chkdsk file fragments, windows log files, clear up junk and unused registry entries, uninstall programs in your control panel without actually having to open the control panel if you are in the CCleaner, even use system restore files.

    You can totally wipe a drive. What you can not do, is select files singly or in batches to delete. Totally wiping the drive is also going to take the OS with it.

    It's a BS reason that doesn't hold water.

     

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    Anonymous Coward, Apr 19th, 2013 @ 8:25pm

    Regardless of the purpose of CCleaner, even the judge is finding it amusing that in a case where everything is being handed to Prenda on a silver platter, Prenda is running away.

    Sounds like a certain Chicken named Joe that can do naught but squawk and run about in circles.

     

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    madasahatter (profile), Apr 19th, 2013 @ 8:26pm

    CCleaner and Similar App Capabilities

    Many people have apps to remove digital litter cluttering their computers. The default settings on many of these apps is to clean up the registry, delete temp files, clean the temp folder, clean the recycle bin, and similar activities. Some can securely delete files on demand. However the existence of such an app does not mean it was ever used to do this.

    Duffy is trying to BS Judge Chen and Judge Chen smells the turd pile.

     

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    That Anonymous Coward (profile), Apr 19th, 2013 @ 9:00pm

    Seriously?
    People are trying to justify claims made by Prenda.
    Sure they might be working a huge scam on the system, extorting cash from people, lying to the courts, stealing identities, and I think they kicked a puppy once...
    BUT DAMNNIT CCLEANER TOTALLY COULD DESTROY THEIR AIRTIGHT CASE!

    Really?

     

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      Rick Smith (profile), Apr 20th, 2013 @ 10:19am

      Re:

      As sad and transparent as the excuse for the withdrawal is, I almost wish it were allowed.

      Would that not set precedent that the mere presence of such tools is cause for dismissal because the infringement is not provable? Then everyone would just have one installed which should help combat all infringement cases.

      Now I'm not really naive enough to really believe this is what would happen, so its just wishful thinking, but it was still a pleasant though.

       

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    Danny, Apr 19th, 2013 @ 9:17pm

    CCleaner can be used for the purpose alleged by Prenda. Just delete the file in question, empty the recycle bin, and use CC's secure delete free space tool. Poof, there goes the digital evidence.

    All Prenda has to do now is show that the defendant was the real downloader of the porn video, that he is also knowledgeable enough to use CC, and that Prenda is a legitimate law firm and its clients, AF Holdings et al, are real companies with real business interests outside of copyright litigation, and that Alan Cooper is a real person. It's a cinch!

     

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      Anonymous Coward, Apr 22nd, 2013 @ 8:59am

      Re:

      At this point it's going to be easier to prove the existence of an omnipotent creator of everything (and then blame him for Prenda's current issues!).

      Btw If anyone from Prenda is reading this, you can have my prove-religion-is-real legal strategy for the knock-down price of $99999.99

       

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    Anonymous Coward, Apr 19th, 2013 @ 9:48pm

    If I were in that courtroom I would have started a slow clap.

     

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    Anonymous Coward, Apr 20th, 2013 @ 12:26am

    CCleaner can indeed "spoil"

    As much as I dislike Prenda and company for their abuse and exploitation of the system, I will agree that CCleaner can indeed be used to "spoil" the evidence. Danny's method as described in comment #14 to do so is true and valid. Ignoring this inconvenient truth is unseemly and unfairly biased against Prenda.

     

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      That One Guy (profile), Apr 20th, 2013 @ 1:16am

      Re: CCleaner can indeed "spoil"

      Agreed, the program can be used like that(now proving that it was for a particular file would be something else entirely), but the important part brought up in the article is that in any normal case, the idea that the defendant might have deleted evidence in that manner would be a slam dunk for Prenda, and something they would want to use in the case, so the idea that they are instead trying to use it to get the case dismissed suggests that they are just trying to use it as an excuse to duck out of the case.

      Or put another way, they don't want the case to continue, and this is their attempt to get rid of it.

       

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        Anonymous Coward #17, Apr 20th, 2013 @ 4:06am

        Re: Re: CCleaner can indeed "spoil"

        I'm aware that Prenda wants to get rid of the case.

        The case for spoliation seems to be weak however, as I have just read the related exhibit and it appears that the investigators did a competent job of examining the possibility.

         

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      Anonymous Coward, Apr 20th, 2013 @ 2:14pm

      Re: CCleaner can indeed "spoil"

      I'm pretty sure that the wipe free space option was never used, and never claimed to be - the argument relates solely to the default functions of CC. If the free space had been wiped, it would leave a tell-tale trace of the use.

       

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      identicon
      Anonymous Coward, Apr 20th, 2013 @ 2:16pm

      Re: CCleaner can indeed "spoil"

      I'm pretty sure that the wipe free space option was never used, and never claimed to be - the argument relates solely to the default functions of CC. If the free space had been wiped, it would leave a tell-tale trace of the use.

       

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    Digitari, Apr 20th, 2013 @ 3:51am

    Re:

    Sounds like Prenda got Ccleaner and 12 ghosts confused, not that I use such apps

    http://12g.com/ghosts.htm

     

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    Bergman (profile), Apr 20th, 2013 @ 4:21am

    Whether claiming spoliation helps you win...

    ...would depend entirely on who committed the spoliation, wouldn't it?

     

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    special-interesting (profile), Apr 20th, 2013 @ 5:17am

    Fascinating how one silly useful program at one time decried by Prendaa as evidence for their case is now used as one for convenient damage control. Would this not be circumstantial evidence for claims that they knew this and were just waging the best unfair battle they could? Exactly when did they 'learn' this lesson and how?

    If CCleaner is evidence for the deletion of files then what significance is the file delete button? What incrimination is incurred due to the 'empty trash' button? At such a level it is funny. A joke, right your honor. Its a joke... Now try and make the same assertion to the defendant.

    Fair is fair and these types of accusations work both ways. Especially since the learning of this basic knowledge was not from the defendants attorneys who basically stated the truth. (as expected)

    At the Popehat.com site Cathy Gellis noted the quote from judge Chen; "Normally if you argue spoliation, you win the case!" the claim is even more bizarre when the prosecutor makes this claim and not the defendant. There is definitely something going on behind the scene as none of these actions make any sense to a legitimate case. Prendda's new claim to dismiss the case is that its just to expensive. Now if that only worked for the defendant. (Thank you Judge Chen!)

    Its a good lesson on human behavior to see the metaphorical judicial magnifying glass (in full sunlight no less) being applied and more fascinating to see whats left after the lies and subterfuge are burnt off.

    Yet it seems (as the dark side of the 5th amendment has been invoked, seemingly arbitrarily, right in the middle of several cases) that they still have yet to step into the light and reveal whatever they are. (about) One might abuse the imagery of a Blade/Vampire movie when one of their kind enters sunlight.

    “Aaaaahhhhhh!” (SFX=Poommff.) -dust falls-

    Now if copyporn (right?) trolls would only do that in real life.

    But of course like some old Freddy/Chucky/Halloween bad horror movie the perpetrator never dies so cleanly nor quickly. Keep up the supplies of popcorn, chips & salsa and cheesy chili dogs. Just let me know when the show is on.

    One thing is clear is that in almost all of the currently active Prendda cases both the defense and judges themselves are starting to ask questions about the mysterious off shore holding company AF holdings. (and the big unanswered question is... what does AF stand for???)

    $$$ in other Prendda news;

    Over at DieTrollDie.com they brought us the interesting point that partial torrent downloads are useless as a file. Totally useless when the beginning of the file is not there as it wont load up at all. Not pointed out is the complete uselessness of ANY partially downloaded file. Torrents deride up a file into hundreds if not thousands of tiny pieces and even if a file is 98% downloaded its still 100% junk.

    So basically any plaintiff/prosecutor must prove a complete download. Since many torrents are poorly seeded many, if not most, stop a download long before its finished.

     

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    Androgynous Cowherd, Apr 20th, 2013 @ 1:15pm

    File deletion tools are not, in and of themselves, incriminating.

    File deletion tools are not, in and of themselves, incriminating. Their presence on computers is, in fact, becoming ubiquitous. Besides CCleaner, Peazip and the McAfee security suite include such, and are commonly installed software.

    The presence of a secure-delete tool on a computer is no more evidence of bad faith or evidence spoliation, taken in isolation, than is the presence of a paper shredder in an office cubicle. It is, if anything, merely evidence of normality.

    (Anonymizing tools likewise. The presence of Bitcoins or Bitcoin software on a device is no more evidence of criminal intent than is the presence of twenties in a wallet in someone's pocket. The presence of Tor or VPN software on a computer is no more evidence of criminal intent than is the presence of paper, a pen, and a letters-and-numbers stencil in a residence, which can be used to make pamphlets, signs, or posters impervious to handwriting analysis and lacking the "fingerprints" left by individual typewriters, printers, and etc.)

     

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      Anonymous Coward, Apr 20th, 2013 @ 1:39pm

      Re: File deletion tools are not, in and of themselves, incriminating.

      The problem is that to the copyright maximalists is that possession of a computer is evidence of infringement.
      /sarc (maybe)

       

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    Lurker Keith, Apr 20th, 2013 @ 10:40pm

    Fallout

    Ah, fallout. It's what you need foresight to mitigate. & to have foresight, one must have a functioning brain... or a mutant power.

     

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    identicon
    Anonymous Coward, Apr 21st, 2013 @ 7:52am

    Nothing here smells right to me.

    I am with the judges on this; something simply does not smell right.

    From Wikipedia
    http://en.wikipedia.org/wiki/AF_Holding

    AF Holding International is one of the largest conglomerate companies in Azerbaijan. The company headquarters is located in Baku with offices in Frankfurt and London. AF Holding is active in business sectors of construction, production, property, retail and tourism which are based in Baku and abroad.

    Also from Wikipedia - Azerbaijan

    Religion
    Main article: Religion in Azerbaijan
    Dome of 13th century Bibi-Heybat Mosque. The mosque was built over the tomb of a descendant of the Prophet Muhammad.[173]

    Around 95 percent of the population are Muslims.[174] 85% of the Muslims are Shia Muslims and 15% Sunni Muslims,[175] and the Republic of Azerbaijan has the Second highest Shia population percentage after Iran.

    PORNOGRAPHY

    http://www.soundvision.com/info/life/porn/isporn.asp
    Islam on Pornography: A Definite No NO
    By Abdul Malik Mujahid

    Every Friday we hear the Imam conclude his sermon by reciting the following verse of the Quran:

    "Surely God enjoins justice, kindness and the doing of good, to kith and kin; and He forbids all that is shameful, indecent, evil, rebellious and oppressive." InnaAllah Yamuru bil adel, wal ehsane, wa itae zil qurba; wa yanha anil fuhshae, wal munkari walbaghi; yaizukhum lallakum tazakkaroon. (Quran 16:90)

    Pornography and the culture of pornography has all the three elements which God has prohibited in the above verse of the Quran: Fuhsha; Munkar, baghi. Here is a bit of terminology before we review the rest of the evidence prohibiting pornography.
    _________________

    We have to wonder about a group of lawyers that represent a group of pornographic scam artist located on the opposite side of the globe from the corporate home office, operating in a language and culture that no one at the home office understands (I from the South and going to California is more foreign than going to Saudi to me and I have lived in both.) , doing things that is fundamentally opposite to the cultural and religious beliefs of the directors located in the home office.

    Nothing here smells right to me.

     

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      Gwiz (profile), Apr 21st, 2013 @ 9:52am

      Umm. No.

      AF Holding International is one of the largest conglomerate companies in Azerbaijan.


      You are confusing two different companies.

      This story involves a company named "AF Holdings LLC". Notice the "s" on the end of "Holdings". Also note that it's a "LLC" which stands for "Limited Liability Corporation" and I believe that is an acronym used exclusively in the United States.

       

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    _Arthur, Apr 25th, 2013 @ 7:47am

    Prenda Law offices are for sale ?

    square footage at address, city; property type; tenant; procuring agent; owner; listing agent; deal date (occupancy/effective date)
    790sf at 591 Redwood Hwy., #2145, Mill Valley; office; Prenda Law; Michael Golden of CT; na; Brian Foster of CT; Dec. 15

     

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


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