Yet Another Court Not Happy With A Prenda Lawyer

from the order-to-show-cause dept

It's been, what, a week or two since we had a story about a judge somewhere being pissed off at Prenda/AF Holdings? You may recall that, over in Georgia there was one of the many AF Holdings/Prenda cases that was a bit more bizarre (if you can believe it) than the others. That is, in part, because rather than having the usual Paul Duffy/Paul Hansmeier/John Steele triumvirate doing the laughably bad lawyering, you had something... worse. Back in the early days, Team Prenda would hire local lawyers to represent them, and down in Georgia they found themselves with quite a peach in Jacques Nazaire, a lawyer who advertised his willingness to pop into court on your behalf via Craigslist, matching the sort of "go get 'em" attitude that Team Prenda seemed to appreciate.

This was yet another case where when the going got tough, AF Holdings/Prenda tried to turn tail and run by dismissing the case, but the defendant, in this case a guy named Rajesh Patel, fought back and sought sanctions from AF Holdings for the bogus lawsuit it had initially filed -- and the whole "forged" copyright assignment by Alan Cooper. Nazaire turned the whole thing into an ongoing circus. Soon after the fight over sanctions began in this case, Judge Wright in California famously issued his big ruling, calling out Team Prenda and AF Holdings for a variety of misdeeds. Patel's lawyer, Blair Chintella, sought to add that ruling to the record, leading Nazaire to bizarrely argue that the Judge in this case should ignore that California ruling because California recognizes gay marriage. Later, he tried again with a bizarre and nonsensical claim about hackers being after him. Then, he sought to file all future documents under seal because some of you people in our comments (yup, Techdirt comments were filed as a part of the case) said mean stuff about him and that was mean.

Throughout all of this, Chintella kept seeking additional evidence via discovery -- which Nazaire repeatedly appeared to ignore completely, or file nonsensical arguments why he wasn't going to comply. Elsewhere, though, Chintella was able to dig up a a series of recordings from GoDaddy customer service in which the same individual identified himself as John Steele, Alan Cooper and Mark Lutz in different calls. He also got Comcast to reveal that a key IP address that was presented in another case as being the IP address that uploaded the content in question, directly belonged to John Steele and Paul Hansmeier, further confirming that they were uploading their own works to file sharing sites (calling even further into question the legality of what they were doing with Prenda).

Oh, and Chintella sought to depose Mark Lutz, the purported head of AF Holdings, who simply didn't show up -- the start of a now repeating pattern of Lutz disappearing rather than showing up when required to by a court.

Still with documents flying back and forth, the judge eventually angrily told both sides to shut the hell up and to stop filing anything.

Having completed the other business he was working on, Judge William O'Kelley of the district court in Northern Georgia, has finally ruled in this case and he's still not at all pleased. He's clearly angry with both lawyers, but the majority of his anger is directed at Nazaire, whom he repeatedly upbraids for a variety of problematic actions. The end result is that he's clearly threatening sanctions, potentially against both lawyers, and will hold a hearing in which both lawyers will need to show cause why they should not be subject to such sanctions. But that's not all. He has also ordered Nazaire to produce the original copyright assignment allegedly signed by Alan Cooper, which is at the heart of this matter. O'Kelley does not appear at all interested in hearing any excuse for not showing up with the original. Among a variety of things he orders to happen for the hearing, the one bit he italicizes is the following:
Specifically, plaintiff must produce the original assignment agreement for inspection.
Note the "must" in there. Somehow, I doubt that he's going to be satisfied.

The Judge is clearly unhappy about Mark Lutz not showing up, and finds Nazaire's excuses to be ridiculous:
Plaintiff’s excuses for Lutz’s failure to attend the deposition are beyond frivolous. Plaintiff’s “justification” for the failure of plaintiff’s managing member to attend his deposition is that Lutz “has been deposed before,” which plaintiff considers sufficient to conclude that “the defense wants Mr. Lutz to fly to Georgia by his own expense for the sole purpose of being humiliated.” ... (“Mr. Lutz has every reason not to appear at a deposition which may also be attend [sic] by individuals who follow a website named dietrolldie and which has identified him as a troll as well.”) (emphasis in original)). However, Lutz was never deposed in this case. The fact that this would not have been Lutz’s first deposition on his relationship to AF Holdings is irrelevant. The fact that there are individuals on the internet adverse to plaintiff’s litigation strategy is irrelevant. However, the court’s ability to address blatant and willful discovery violations is very relevant.

The court finds that Lutz failed to attend a properly noticed deposition and that Lutz’s failure to attend was not justified. Rather than provide any meaningful explanation for Lutz’s failure, plaintiff offered bizarre tangents about how “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” several websites.
He further notes that the law requires him to impose attorneys' fees in this situation, though he'll figure out how much after the show cause hearing. Of course, I'm wondering if Mark Lutz will ever make a reappearance. As we noted recently, while his signature showed up on a recent document, he still hasn't explained another one of his mysterious disappearances, which Team Prenda insisted he would explain.

While Judge O'Kelley makes it clear he's not interested in rehearing stories of Prenda/AF Holdings' actions elsewhere, he's solely focused on misconduct in this case, and he certainly suggests there's been a fair amount of that. Beyond calling out Nazaire for arguments that are "legally frivolous and generally incomprehensible," as well as "nothing more than disjointed assertions that are completely immaterial to the case," the judge has a long list of things he's concerned about and wants to hear Nazaire try to explain:
  • Nazaire's failure to properly disclose everyone who had a financial interest in the matter
  • Nazaire's potential failure to properly list all of the lawyers working on the case (earlier, the judge highlights that when Nazaire filed the complaint, he appeared to use Brett Gibbs' email and phone number.)
  • Nazaire's "failing to make a reasonable inquiry into the facts and the law before filing this case."
  • And also "whether Nazaire facilitated vexatious and frivolous litigation by maintaining a meritless suit, filing frivolous and unwarranted motions, and making frivolous and unwarranted objections to defendant's discovery requests."
And those are just the issues directed at Nazaire himself. There are separate issues concerning AF Holdings, mainly concerning potential sanctions for a variety of activities, but also whether (as other courts have found) the company committed fraud on the court by filing a case where they had no standing, based on a forged copyright assignment.

The Judge also scolds Chintella for "a lack of familiarity with basic evidentiary and procedural rules" and also asks him to further explain the effort to crowdfund money to hold Lutz's deposition. Nazaire suggests this is sanctionable, and while O'Kelley seems unsure exactly what the problem is, he wants to hear Chintella's defense of this action.

Judge O'Kelley also adds the following "note of caution" which suggests he's not interested in any kinds of games, though given Prenda's history, they seem almost unable to avoid trying to play games. It will be a measure of incredible self-restraint for them to actually abide by the following:
In case this order did not adequately drive the point home earlier, the court is not pleased with how this litigation has progressed. Failure to attend the show cause hearing will not be well received. Failure to attend will result in severe sanctions and may result in referral to the State Bar of Georgia. Failure to directly address the court’s concerns will result in equally severe sanctions.

Notwithstanding this court’s prior order prohibiting the parties from filing additional motions, the parties may file a supplemental brief addressing the court’s concerns to the extent that the supplemental brief provides facts not already present in the record. The parties are strongly encouraged to bring any relevant evidence to the show cause hearing. Specifically, plaintiff must produce the original assignment agreement for inspection. If a party wishes to present testimony that it deems critical to its case, the party should be prepared to solicit that testimony through a live witness. The parties are on notice that they may not use affidavits as a means to circumvent cross examination.
Can't wait to see how that hearing turns out.

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  1. icon
    That One Guy (profile), 19 Dec 2013 @ 11:04pm

    Re: Does Mark Lutz even exist?

    Yes, he has shown up in court a few times, though his appearance has generally not been to Prenda's benefit, and for the most part he was simply acting as Steele's puppet, just saying what he was told to say.

    The following covers what could be Lutz's finest hour in a court-room(or an audition for a comedy sketch in the worst possible place, take your pick):
    http://www.techdirt.com/articles/20121130/17100821190/copyright-troll-case-tossed-fraud-court- after-abbott-costello-worthy-hearing.shtml

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