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.
: 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.