Extremely large EC v. DA update, part IV of ??? #notchilled

Reminder: I make this post on behalf of myself, and not any other entity.

Recap: Over a year ago (god, really?) Ellora’s Cave sued Jane Litte and Dear Author, alleging that DA had defamed EC in a blogpost that detailed layoffs, failure to pay contract employees and authors, among other things. Lots of things have happened, like we moved to federal court, and then there was discovery (but maybe not all of it), and motions for summary judgment.

Here are the issues that are still pending:

A. The claim by EC against DA alleging defamation.
D. The claim by DA against EC alleging abuse of process.
E. The motion by Ann Jacobs (hereafter AJ) proposing to intervene as a permissive counterclaimant in the litigation.
F. A bunch of stuff related to the discovery period.

This part of the update will start to talk about DA’s motion for summary judgment, but won’t really get into the substance. But before we get there, a not-so brief update on another pending matter.

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Ginormous EC update, part 3/???: discovery issues abound! #notchilled

Since I just posted earlier tonight, a brief reminder that I speak on behalf of myself and not any other entity (yada yada) and that there’s a lot of stuff going on, so check out my last post for a recap.

I’m going to be discussing the following issues in this post:

D. The claim by DA against EC alleging abuse of process.
F. A requested clarification with the court regarding the length of the discovery period.

As you’ll see by the end, these issues are related.

To update you on where we are in D, Ellora’s Cave filed a motion for summary judgment on Dear Author’s counterclaim. Here is EC’s motion for summary judgment. There’s a declaration from Patty Marks that accompanies this, as well as a piece from Jane’s deposition.

“Summary judgment” is a term that means, “We can decide this case without a trial.” Basically, the point of a trial is to give the jury (or a judge) the chance to see the evidence, to hear the witnesses, and decide who is telling the truth. A chance to hear witnesses and weigh evidence is important where the facts are disputed, and the disputed facts would decide who wins the case.

But there are cases where the facts are not disputed–or where the facts that are disputed aren’t relevant to the disposition of a claim.

What it means for facts to be disputed requires a little more than a, “nuh uh, no we didn’t” response. You have to look at all the evidence that has been discovered.

You’ll notice, of course, that this makes it very hard to judge who will prevail on a summary judgment motion after hearing from just one side. That side of course is going to show all the evidence favorable to its side. Until you hear from the other side, the side that says “Look, but they didn’t tell you this,” you can’t really tell if they’ve made a good case for summary judgment or not.

And this is because a motion for summary judgment is not necessarily about who tells the most convincing argument about who will eventually win; it’s about demonstrating that there are undisputed facts which show you win (on the moving party’s side), or that there are disputed facts upon which the case will turn (on the non-moving party’s side).

That said, we come to EC’s motion for summary judgment on DA’s claim for abuse of process. As a reminder, a claim for abuse of process basically says that EC is perverting the justice system to achieve an end that is not allowed.

EC says that the record does not support a finding that it has perverted the justice system. And specifically, it points to a deposition by Jane in which EC’s lawyer asks her why she believes EC perverted the justice system, and she says, Because you filed the lawsuit to shut up cover artists, editors, and authors who were speaking.

I just want to point out that Jane was deposed in early March, and preliminary discovery just closed. Even though Jane is a lawyer, her stating that this was the evidence she had at the time is not considered to be binding on her. She is not the lawyer in this case, and a deposition is not a brief to the court. She also can hardly be expected to name all the evidence that her legal team will generate in her deposition.

That being said, EC is perfectly right. If the only evidence Jane had of abuse of process was that this case was filed, the judge would likely grant summary judgment to EC on this claim. I seriously doubt that Jane will not have more evidence to present then her deposition.

So, we’ll wait to see what the court has to say about this, and how DA responds, but this was…not really a stellar effort of a brief by EC. It did the job. Barely.

But if we want to talk about DA’s future response, items E and F on our EC-Watch board have now become entangled.

So this brings us to:

F. A requested clarification with the court regarding the length of the discovery period.

I covered the clarification regarding the length of the discovery period earlier. Basically, preliminary discovery closed on July 15; DA asked the court to clarify that this was just preliminary discovery, and not anything else; EC said, “No way, that was it, we’re done!”

DA responded to this, basically saying, “Uh, guys, that was just preliminary discovery, and we all knew discovery would be open longer.” They said it a little more eloquently, but I’ve summed up.

EC responded to that, saying, “No, you’re the liar.” Specifically, EC claims: “those ideas were never adopted by the Court or made part of the Court’s Case Management Plan.”

In support of this, EC includes an email from Randazza that specifically states that Randazza believes the discovery plan “did not provide for our idea,” which does not look good for Randazza.  Unfortunately, only page 1 of this thread is included, and it’s hard for me to tell from that what precisely is meant by “our idea.” EC also includes an email from Randazza looking to schedule depositions of Tina Engler and Patty Marks. Since I didn’t attend any of these conferences, I have no idea what to think, but that does look like an admission by Randazza that at least some part of the plan (what part?) was not going to be something they did. But there we are.

In response to this back-and-forth bickering (note that we had a request, a reply to the request, a response to the reply, and now a reply to the response), DA today filed a motion, essentially escalating the “request for clarification” to a “come on, now, quit this bullshit.”

The summary of the motion is this: DA believed that discovery during this period was limited. “Defendants repeatedly attempted to schedule the depositions of Patricia Marks and Tina Engler, but Plaintiffs refused to schedule such depositions.” DA did not file a motion to compel them to be deposed with the court, because they thought we still had time.

Second, DA says, “Defendants are still waiting for responses from Plaintiffs to written discovery requests served on June 10, 2015.” If true, this one is pretty jaw-dropping for me. Not that EC hasn’t complied with written discovery–this is something that those who knew about the Brashears case obviously expected. But it takes a solid dose of chutzpah to not deliver documents requested, to file a motion for summary judgment saying that DA doesn’t have any evidence, and then to say, “ha ha, discovery is closed, we don’t have to give you anything.” If that is what happened, that is absolutely acting in bad faith.

I’m very curious what Ellora’s Cave will have to say about the claim that they haven’t responded to written discovery requests, and for their sake, I hope that they have a reasonable explanation.

Accompanying this motion is a copy of the defendant’s request for production of documents. None of this stuff is a surprise (“Send us your balance sheets.”) (“Send us everything you’ve ever said about royalty payments to authors, whether internally or externally.”) (“Send us everything you’ve ever said about the lawsuit.”)

(Particularly in the last category, some of TE’s posts to the business loop that I’ve heard about from small to mid-sized birds are troubling–telling them that they could not speak about anything at all, except to their therapist or priest. Since this is not supported by the language of the authors’ contracts, posts to that effect would help build a picture suggesting that the aim in filing the lawsuit was to intimidate authors from speaking out.)

There is also a declaration from Marc Randazza supporting the claims in this motion, a file of emails regarding deposition of the plaintiffs–I want to point out that Randazza says that “Plaintiffs did not assent to these scheduling efforts,” in his declaration, but the attached emails do not show active non-assent. The emails demonstrate that he is attempting to depose them, but does not show their response, if any. I do not feel like we are getting a complete picture of what has happened here.

Finally, Randazza mentions that RWA recently issued a notice regarding EC, which would require further discovery, and that there is a Huffington Post article that states that Tina Engler indeed purchased a home in West Hollywood, which defendants only discovered on September 5.

Bottom line? DA asks the court to make clear that discovery is still open, and (here is how this is connected to the summary judgment motion) to toll DA’s response to EC’s motion until EC complies with discovery.

I’m really curious to see what EC is going to say.

What’s left: I still have to talk about DA’s motion for summary judgment. I’m going to try and tackle that this weekend, because there’s a lot to discuss.




Big honking EC update, part 2 of ??? #notchilled

Disclosure: I make this post on behalf of myself and definitely not anyone else, etc. etc. and so forth.

Apology: I thought that somehow spacing this stuff out would be a good idea that would let me catch up eventually, but things are happening fast and furious right now, and so if I don’t actually time to catch up for the next few nights, I’m just going to fall further behind. I am behind on LOTS of things, not just this. Eek.

Brief overview:

Much stuff has ensued since this litigation began lo these many months ago, but right now, here are the issues pending in this case:

Ellora’s Cave sued Dear Author, claiming that a blog post was defamatory. Dear Author counterclaimed for abuse of process. Author Ann Jacobs proposed to intervene as a permissive counterclaimant.

A. The claim by EC against DA alleging defamation.
D. The claim by DA against EC alleging abuse of process.
E. The motion by Ann Jacobs (hereafter AJ) proposing to intervene as a permissive counterclaimant in the litigation.
F. A requested clarification with the court regarding the length of the discovery period.

I am going to try and knock off as much as I can here, issue by issue, until I am caught up or this lawsuit is decided, whichever comes first. So let’s start with…

E. New happenings on AJ’s motion to intervene.

To remind you where we are with this: AJ moved to intervene as a permissive counterclaimant, stating that EC breached their contract with her and that they consequently owe her A Lot of Money, and also, she wants her rights back, thank you Bob.

I have covered the initial motion and EC’s response. Since yours truly last posted, Dear Author has posted a brief in support of the motion to intervene, and AJ has posted a reply to EC’s response.

Since these are both responsive briefs to Ellora’s Cave’s response, I want to briefly remind you of what Ellora’s Cave said:

  • There isn’t enough commonality of law and fact
  • This motion is not timely
  • The EC contract is subject to an arbitration clause and so should not be litigated in court

I provide this for context in terms of the responsive briefs, and I’ll talk about what each of the briefs say on this point one by one.

Common Issues of Law and Fact

Ann Jacobs, by contrast, explains that the central question in her case is, “Did you pay the authors their damned money?” which is, unsurprisingly, the same question in the DA v. EC case. Honestly, on this one, I don’t think EC has a leg to stand on. OF COURSE there is a common question of law and fact here.

(Incidentally, there is this interesting procedural footnote, which I toss out as a “huh, okay.”

Screen Shot 2015-09-15 at 6.07.12 PMEeenteresting. Particularly eeenteresting in light of the filings in issue F today, but I’ll get to those when I get to them, which might even be today! Who knows! Pigs have flown before! Just put that under your hat for now.)

Randazza and Nye (Jacobs’ lawyer) both do a pretty clear job of beating this horse. It’s okay, guys; I’m pretty sure it’s dead already.

There is one point made in Nye’s brief that I want to give a little more space to:

There is also potentially significant economy for the court system not only in avoiding two trials over the same issues, but in potentially avoiding two types of collateral litigation. First, if the cases are tried separately and Ellora’s Cave prevails in the first action to be tried (whichever case that may be), then Ellora’s Cave will all but certainly attempt to give its favorable judgment preclusive effect in the second case to be tried, thus throwing the remaining parties into a quagmire of claim preclusion or issue preclusion litigation that would be avoided if the cases were tried together.

Let me explain what this means, because “preclusion” is a legal term of art. “Preclusion” means that an issue has already been tried (or should have been tried) by the court, and it is not going to be retried. So, for instance, if person A sues person B for slander, and person B prevails, person A cannot then sue person B for slander for those same words. That’s what is called “claim preclusion”: you already made that same damn claim, you don’t get to make it again.

As a general rule, claim preclusion only applies to the original parties to the lawsuit, or those very closely related. Ann Jacobs is not closely related to either Jane or Dear Author, and so I’m a little foggy as to how claim preclusion would apply here.

“Issue preclusion” can be a little more tricky. An example of a place where issue preclusion can be huge is in bankruptcy court. If the bankruptcy trustee hears from (it thinks) all the creditors and divvies up the assets  and then you step forward and say, “Wait, what about me, you never heard from me!” the answer is, sorry bucko, you had your chance, you didn’t step forward, you’re DONE. That issue has already been settled, and the fact that you didn’t say anything is irrelevant.

Issue preclusion, however, in non-bankruptcy contexts (there’s a huge statutory framework underlying bankruptcy) is more generous. If person A sues their bank saying that they mishandle transactions, and person B (unrelated to person A) sues their bank saying that they mishandle transactions, it’s perfectly possible that person A could win and person B could lose, even if they present identical factual situations, and that the result in case 1 would not have an impact on case 2.

I seriously doubt that either case would actually have a preclusive impact on the other.

So here’s how I translate what Nye is saying: “This issue may be bogus, but EC will absolutely try to use it either way, and create more vexatious motion practice, so let’s try and combine the two cases for efficiency’s sake, and by ‘efficiency,’ I mean ‘avoiding stupid motions that waste money.'”

While I empathize with that, I am not sure the court will accept the argument that we should lump all the EC cases together and stick the court with them forever and ever just because EC might file stupid motions.


AJ raises several points on timeliness.

First, discovery is not yet finished. (More about this later).

Second, some of the conduct raised in the counterclaim had not occurred until fairly recently (e.g. one month ago), and so AJ was not dilatory in filing this motion.


Finally, as to the arbitration clause, AJ says this:

The fact that there is an arbitration clause in the publishing agreements does not weigh against allowing intervention, because the scope of arbitration is quite limited. The publishing agreement in Exhibit 1 to the intervening counterclaim . . . provides generally for arbitration, and then states, “Notwithstanding the foregoing, the parties shall have the right to conduct discovery and the right to seek injunctive relief in any court in the State of Ohio.”

And that, folks, is why the counterclaim is structured as it is: seeking injunctive relief and a declaratory judgment first. I note that claim 3 of the counterclaim is a pure claim for money damages and breach of contract, which would fall under the (very) limited scope of the arbitration clause, and Nye kind of doesn’t really say anything about that.

My takeaway? I still think it’s likely the court will bounce this, but again, I don’t know for sure. And if the court does bounce it, I suspect we’ll see it get refiled in some form, and we’ll be able to have our popcorn and eat it, too.

I’m going to try and publish another post covering both the motion for summary judgment on the counterclaim and the discovery issues, hopefully soon, hopefully tonight, because there’s some interesting stuff that just got filed in that today. But for now, I need to walk the dog and have dinner.

A big, messy EC v. DA update, part 1 of lots #notchilled

The usual disclosure: I make this post on behalf of myself, and not on behalf of any other entity, etc. etc.

My apologies for falling behind in the reporting here; it’s been a busy week for me as well as for the case. In the interest of getting caught up, I need to break up everything that has happened into semi-meal-sized pieces and try to spread it out over the weekend.

The obligatory recap

Jane at Dear Author published a blog post, called “The Curious Case of Ellora’s Cave,” which detailed instances of nonpayment to authors, tax liens against the publisher, and so forth. Shortly thereafter, Ellora’s Cave sued Jane. After some initial rattling of sabers, the parties settled down to conduct discovery and we had many months in which very little was publicly posted.

That changed, and how. In this last week or so, the following have happened. Note that I will once again start labeling separate threads with letters–something that I did back in the initial saber-rattling period–to help keep track of what is going on. I will continue to use these letters in the future to designate these different threads, because once again, these threads are (relatively) independent.

Up until this last week, here were the current active threads in the litigation:

A. The claim by EC against DA alleging defamation.
D. The claim by DA against EC alleging abuse of process.

We now must add:

E. The motion by Ann Jacobs (hereafter AJ) proposing to intervene as a permissive counterclaimant in the litigation. 
F. A requested clarification with the court regarding the length of the discovery period.

We have had action on all four of these threads in the last week, but I haven’t had time to say much about any of these.

In this post, I’m going to deal with issues E and F, since I can knock them off fairly easily. A and D are going to take a little more time because we’ve had motions for summary judgment in them. I also want to take a little time to specifically talk about Jane’s deposition.

Here’s what’s new in E and F.

E. AJ’s motion to intervene as a permissive counterclaimant.

I covered the proposed motion to intervene when it was filed about a week and half ago here. Ellora’s Cave has filed its expected objection; you can read it here. It’s actually one of the better legal briefs that I’ve seen from Ellora’s Cave.

To sum up: they think the motion is not timely (one of the requirements), and I’ve already said I agree. They say that there isn’t a common kernel of fact and law (I’ve already said I disagree–there are clear commonalities of fact, enough to satisfy the standards, but EC has to make the argument, and they do). They say a few other things, but I think the only argument they make that I haven’t yet touched on is this: “[T]he existence of an arbitration provision in the contract militates against intervention. The arbitration provision provides as follows:…” EC then proceeds to cite not the complete arbitration clause, which is interesting because the complete arbitration clause lists exceptions, and one of the exceptions is seeking an injunction, which is one of the things Jacobs is doing.

But, yeah, arbitration: not a good friend of class action litigation. You have it there.

I already spent a while last time muttering about how, if I were a judge, I’d want nothing to do with this, and that is still where I’d lay my odds today.

F. The request regarding discovery.

I have not mentioned this tiny little thread at all. On August 31st, Jane/Dear Author filed a request with the judge asking him to clarify whether discovery was still open. Specifically, the defense stated:

At the status conference on August 24, 2015 counsel did not clarify with the Court that limited preliminary discovery was not a tactical decision on the part of the defense but rather a plan set at the case management conference. Given that plan was allowed by the Court on January 26, 2015, and acknowledged in the Case Management Conference Order (Doc. 29) by the notation of a preliminary discovery cutoff date of July 15, 2015; the parties require clarification that discovery is still open after the July 15, 2015 preliminary date.

As such, Defendants respectfully request this court allow discovery to continue up to and including January 15, 2016.

The question was asked on Twitter: Why was this being filed? And more specifically, someone said, I hope Courtney explains.

Alas, Courtney is not made of magic. She is not even made of psychic energy. She has only the public filings to go on, same as you, and sometimes I understand a document’s purpose differently, but if I’m not privy to what’s going on behind the scenes (and I am not in this case), I don’t know any thing more than you. So I wasn’t sure why this was being filed. There were a number of reasons I could guess at.

  • The court’s order left it unclear, and this really was just something that was being put out there for the sake of clarity.
  • The defendants wanted to remind the judge that the discovery date mentioned by the proposed intervenor was, not, in fact, an official closing, even though that might be what the calendar said.
  • The plaintiffs were being recalcitrant about scheduling further discovery and this was a prod.

Since I don’t know what happens behind the scenes any more than any of you do (really–despite what someone says about this case being tried by the defendants in social media, Jane doesn’t talk to me about it at all), I had no way of knowing whether this was an idle clarification or designed to address something in particular.

In any event, even if there was no overt recalcitrance regarding scheduling up until now, plaintiffs decided that this was a very convenient boat to jump aboard, and did so. Yesterday, they filed a document with the court that stated as follows:

The Plaintiffs are not seeking clarification of the court’s order as the order is sufficiently clear. Nor are the Plaintiffs seeking to reopen discovery for the purposes of allowing the identification and deposition of new witnesses. The appropriate time for that type of discovery was prior to July 15, 2015, prior to the filing and preparation of summary judgment motions. Defendants had the same opportunity as Plaintiffs to depose witnesses for trial or to support their dispositive motion, but having failed to make use of that opportunity in a timely fashion, now seek an extension of discovery.

My response to that is distinctly raspberry-colored. Plaintiffs joined in filing the report of the parties planning meeting, which states:

Defendant expects to file a motion for summary judgment after Plaintiff completes its discovery. Discovery shall be suspended while summary judgment motions are pending.

We all understood from the court documents that this meant that Jane would be deposed first, summary judgment motions would follow, and then, if they were not granted, EC witnesses would be deposed. And this makes sense, because deposing witnesses is hugely expensive, and if Jane can get away with not having to spend upwards of $30,000 deposing EC employees and principals, she will.

If I picked this up from a few paragraphs in the court documents, I can’t imagine that EC and its lawyers didn’t understand it when they were standing in the room.

Updates on other sections to be continued…

Ann Jacobs (kinda sorta) sues Ellora’s Cave #notchilled

General disclaimer: I am writing this in my individual capacity, and not on behalf of any other party. Thank you!

People have been asking me if I am still covering the EC case. The answer is yes, except there has been nothing to cover except status reports, and I’m unmotivated to cover status reports.

That just changed. Today, an EC filing landed in my inbox. I looked at the title–Motion to Intervene–vaguely thought that this was going to be the motion to attach Jaid Black/Tina Engler as an indispensable party to the litigation, something that was mentioned earlier in the course of litigation (although that wouldn’t have been labeled a motion to intervene, so why I thought that I don’t know), figured it would take 15 minutes to go through, and went about my merry way.

I opened the file while I was making dinner and whoa baby. TL;DR: Ann Jacobs has asked to intervene in this case as a third party, claiming a nexus of fact with the underlying issues, on the grounds that EC has breached contracts with her, covering 40 books, in multiple ways.

Here is the motion to intervene. Here is the counterclaim.

A much longer explanation follows after the jump.

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Motion to Quash & Gag Orders #notchilled

Disclaimer: I make this post on behalf of myself, and not any other entity.

Brief recap of where we are in the litigation: As you may recall, Ellora’s Cave sued Jane Litte, claiming that Jane had defamed the company. Jane removed the case to federal court, and Ellora’s Cave, after a little dithering, tossed their motion for a temporary restraining order, leaving us with the long slog of discovery (the phase where each side gets evidence to support their case from various sources) and various dispositive motions ahead of us.

Right now, the court has pending before it a motion regarding discovery–specifically, a motion to quash a subpoena that was served on the @pubnt account on Twitter.

Yesterday, the DA team filed an opposition to this motion. Here are the pieces: the subpoena served on Twitter, a selection of @pubnt’s tweets, and the actual opposition.

There is really nothing exciting in here. In fact, it’s relatively anticlimactic. The opposition to quash wasn’t written by Randazza, and it shows–it’s sloppy and badly written. But the actual opposition does what an opposition to a motion does–namely, it cites the relevant law and applies it. The relevant law is Federal Rule of Civil Procedure 45(d)(3), which says:

On timely motion, the court for the district where compliance is required must quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply;

(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c);

(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or

(iv) subjects a person to undue burden.

The first few paragraphs of the opposition are all that matters. The defendants state:

“@pubnt incorrectly assert that Defendants’ issued the Subpoena to Twitter, Inc. (the “Subpoena”) to harass, defame and punish the persons known as @pubnt. In reality, Defendants’ seek the identities of @pubnt to pursue the discovery of admissible evidence.”

And then they go on to explain that admissible evidence includes evidence that makes the plaintiffs’ case (yes, this is true! It’s not perverse! It’s the way litigation works!), and also, that the identity of @pubnt is of specific interest because if @pubnt is acting at the behest of the plaintiffs, it would certainly bolster defendant’s counterclaim.

Almost done.

Then the opposition states: “@pubnt fail to reference a reason under Fed.R.Civ.P. 45 (d)(3) for which the Court could quash a subpoena.”

This seems to be an unfair reading of @pubnt’s motion to quash. No, @pubnt didn’t cite the relevant law, but “Jane Litte is a vicious troll, and if my identity is made known to her through a subpoena, she and her gang of violent gangbangers will put me in fear of my life for exercising my constitutional right to free speech” sounds like an undue burden to me. There’s no question that @pubnt has argued that it will be subjected to an undue burden. There’s no factual basis for that argument, but it has, in fact, made that completely unsupportable argument.

More puzzling still is the selection of tweets the defense chose to present from @pubnt, all from February 13th and 14th, none of which predate the subpoena (!!!), and which miss @pubnt’s most delightful assertions of insider knowledge. It’s like whoever grabbed this randomly printed the first few pages of tweets and didn’t bother scrolling past that. The opposition doesn’t even reference or quote any particular tweet claiming insider knowledge. Like I said, it’s sloppy.

That being said, the point being made–that @pubnt has claimed to have discoverable information–doesn’t depend on even a minorly capable scan of the account in question, particularly since @pubnt admitting to having discoverable information in its motion to the court.

But the opposition doesn’t at all respond directly to the assertion that @pubnt is in danger, except as quoted above, which was to say, “We want to know this information because it’s legally relevant, not because we want to chop up @pubnt and devour it.”

I don’t think that a lot needed to be said about that assertion. It’s like @pubnt said, “Jane Litte eats twitter accounts for breakfast.” It’s such a bizarre and baffling assertion that (a) literally nobody has ever said that Jane Litte does not eat twitter accounts for breakfast, for the same reason that nobody has said that Jane Litte is not a space alien with an armada of bee-drones, and (b) it’s flatly unbelievable and wildly paranoid.

But I always believe in making the court’s job easier, especially when the court’s job is to figure out how to make sense of several pages of complaints. A single sentence to the effect that @pubnt’s fears are so outlandish that they are not even supported by the ravings of the anonymous gossip blog that it cites would have been useful.

In any event, we will see if @pubnt uses the opportunity to reply. Or maybe even get a lawyer. (Have I mentioned that @pubnt should have a lawyer? Yes, it would be nice to have someone who knew the relevant law! Especially since the remedy @pubnt probably wants is not the one @pubnt is asking for, but whatever, who needs lawyers, amirite?)

But this all basically changes nothing: we still have a wildly unsourced letter to the court from @pubnt, and a response from the defendants that basically amounts to “LOL wut?”

The other thing that happened is this article about Ellora’s Cave. This morning, twitter was asking: Why don’t Tina Engler’s statements here violate the gag order? Why isn’t anyone doing anything about it?

Reminder: the gag order in question was entered in state court when the parties agreed to delay the hearing on the Temporary Restraining Order. The substance of that order is this:

In the interim, all parties agree that neither they, nor anyone under their direct control, shall post on the Internet any comments specifically and directly related to the factual allegations that form the basis of Ellora Cave’s defamation complaint; further, they agree not to comment online, directly or indirectly, on the allegations that form the basis of the defamation complaint. Nothing herein shall prohibit Plaintiffs from responding to defamatory posts or re-posts made by third parties related to the issues raised in this litigation.

Joint Motion for Continuance.

“The interim” referred to above is the time between the filing of the joint motion for continuance and the scheduled hearing on the temporary restraining order. The gag order, then, was firmly tied to the outcome of the TRO hearing. And this makes sense: The point of a TRO is to maintain the status quo, and so until a TRO hearing can be had regarding defamation, it would make sense to have an order in place making sure that the TRO hearing isn’t completely defeated.

The literal date given for that hearing, and the end of the gag order, was October 27th, 2014. Plaintiffs informed defendants that they were dropping the TRO in late October. I suspect that a mid-November conversation isn’t a problem on simple date grounds: at that point, it was clear to all parties that the TRO was not going to be pursued.

Further, speaking to a reporter is not in violation of the gag order, which refers only to “post[ing] on the Internet” and “not comment[ing] online, directly or indirectly” — even if speaking to a reporter who posts a story is indirect commentary, speaking to a reporter who doesn’t post a story until after the TRO has officially been denied and the gag order explicitly expires is not a problem, either.

It’s also not clear to me from the article that Tina Engler actually did comment on the case. She said she did not know the identity of @pubnt, but that is not a comment specifically or directly related to the factual allegations forming the basis of the defamation complaint. And while the article refers to “Ellora’s Cave’s perspective,” it does not directly quote Engler, something that the author of the story does not hesitate to do.

Instead, everything the article says about EC’s perspective could have been gleaned from EC’s filings to the court. It’s quite possible that Engler said, “I’ll talk about Amazon and @pubnt, but if you want to know what EC’s perspective is on the substance of the pending litigation, you can read our briefs to the court, which I’ll send you.”

So in short, I don’t think there’s anything to see here.

Finally, for those who are saying, “Why doesn’t anything happen in response to the violation of the gag order?” the answer in addition to all of the above is because the court doesn’t have Google alerts set. The court is not an enforcer. If a party wants the court to enforce a gag order, it has to ask to do so. Nobody has asked, therefore nothing has happened.

The nut takes a bow! #notchilled

Reminder: I post this as myself, and not on behalf of any other entity.

I would like to point out that in my initial disclaimer, I said I would try to be evenhanded. I tried with this post, but…it’s really hard to not make fun of pubnt, and I’m afraid that I failed. This is not evenhanded.

Reminder of where we are: Right now, we’re in the very beginning of the discovery phase. That means that the parties have agreed on a schedule for discovery and have produced initial witness lists. One individual on Jane’s list was the @pubnt account on Twitter. I mentioned this last week, and there was much rejoicing. The Nut went relatively silent on Twitter…but don’t worry, it has faxed a letter to the Court.

Note that, as one might have expected, the Nut does not have a solid grasp on legal proceedings, and that shows in this letter. Also note, however, that the Nut is presenting a legally cognizable argument, and even though the evidentiary basis is thin (to put it in friendly terms), the underlying legal argument is not completely unsound.

A summation of pubnt’s claims for those who don’t want to wade through them.

  1. They don’t know anything about the business of Ellora’s Cave.
  2. They can’t figure out why Jane wants to call them as witnesses for her side.
    (Lemme help, pubnt. Here’s what’s going on. Jane thinks that you might be someone who is connected to EC, as in a personal friend of Jaid Black, or someone involved in the business. She suspects that you’ve been told inside information, and she hopes it was in email form. Jane isn’t asking you to testify on her behalf. She’s saying that you might have information that sheds light on the case. You may think that none of the information in your possession is useful to Jane, but your legal judgment is demonstrably what one would call “sketchy”.)
  3. Pubnt claims that Jane is using the court proceedings to harass. Because pubnt is not good at using words, pubnt fails to mention that the person that is being harassed by Jane is pubnt, but that’s almost certainly what they mean. Pubnt also says that the gang that Jane is running (I think Pubnt means me and others who post on the #notchilled hashtag? — er, I’m a very bad stooge of Jane, since I disagree with her about 50% of the time, but hey) intends to harass it once its identity is known, presumably by taunting it a second time.Pubnt claims that there have been “very serious” threats made. I’m not sure what “very serious” threats have been made, but yeah, I would agree with pubnt that if pubnt’s identity was made public, and pubnt was someone well-respected, it would look very bad for them.

    Chances are that pubnt is either (a) someone connected with the principals of the case, (b) someone we have never heard of, whose identity will strike bafflement into the hearts of all, or (c) someone we have already heard of, who already has little to no reputation in the community.

    If I were masquerading as pubnt (plot twist!) I guess it would go badly for me when the mask got torn off, but I can’t imagine that pubnt is anyone who actually commands respect these days.

  4. Pubnt repeats that pubnt knows nothing.
  5. Pubnt claims that Jane is a “vicious troll” and that the judge needs to watch out for “possible gang activities” and “violation of our rights.” Pubnt doesn’t really mention which rights those are. Don’t worry; pubnt will get there. Eventually.
  6. Pubnt mentions that Jane was banned from RWA. Pubnt fails to mention this was because Jane did not meet the strict definitional requirements for membership in RWA, which as a trade association must offer benefits only to those in the trade, but that’s because pubnt gets news from Stop the Goodreads Bullies, everyone’s favorite source for made-up anonymous bluster. Courts just love anonymous online bluster! (Lookit me not being evenhanded.)
  7. Pubnt cites STGRB again for an attack that Jane supposedly led on an author.
  8. Pubnt cites STGRB yet again for an attack that Jane supposedly led on Nathan Bransford, an agent.
  9. Pubnt cites STGRB one more time for the proposition that Jane supports violence. The twitter thread, by the way, supports the proposition that Jane shrugs off hyperbole that invokes violent imagery. I’m pretty sure she doesn’t literally support authors getting punched in the throat for their books. You realize that anyone who reads this and looks at the receipts will say, “Uh, what? You’re afraid that you will be subject to actual violence because a different person said once that they were so disappointed in the ending of Veronica Roth’s book that they wanted to punch her in the throat, and Jane said NBD? How do you even function with fears like that?”Whatevs. Those are details.
  10. Pubnt says: And there’s more! We just won’t go into details.
  11. Pubnt says that Jane is jealous of success and targets those who are successful. (Which, of course, is why she went after EC when they reported a crushing loss of Amazon revenue, and not the publishers reporting record profits–but whatevs, details again.)
  12. Pubnt says that Jane targets anyone who speaks out against her.
  13. Pubnt says that they are “bystanders and legal case bloggers” (once again, no legal blog is mentioned) (Pubnt, you forgot to tell the judge that you gave Jaid Black legal advice!) Pubnt says that Jane runs her smear campaigns on Twitter, and so they have taken to the tweets to counteract her message by exercising their first amendment rights. This is the first time that pubnt manages to mention a cognizable right at stake here, so good job, pubby.I have not actually seen Jane tweet much, if at all, about this case, so presumably pubnt is conflating me with Jane here.
  14. Pubnt mentions that Jane’s gang is made up of “self-published authors” and bloggers who profit by selling self-published authors advertisements. I am apparently motivated by jealousy, because I wish that my ebooks were priced at $7.99 with me getting 25% of net digital royalties. I am eaten up with hatred at all the many rejections I’ve received.
  15. Pubnt reiterates that pubnt knows nothing, John Snow.
  16. Pubnt once again calls Jane perverse and a vicious troll.
  17. Pubnt says that it does NOT want to be a witness, nope, nosirree bob, in case there was any doubt.
  18. To prove that pubnt is pubnt, it promises to tweet, on February 14th, “In the American tradition of free speech the public can sort out truth from fiction only when both sides have their say.” Oookay pubnt.

There we are.

There are two questions here.

1. Has pubnt made a cognizable legal argument? Uh…yes. Not very well, admittedly, but pubnt is operating pro se and judges give a lot of leeway to those who are representing themselves. Pubnt clearly alleges that (1) It is engaging in anonymous free speech; that (2) Jane’s proposed discovery is not for the purpose of discovering information about the case, but for the illicit purpose of uncovering its identity, and (3) that uncovering its identity would threaten its first amendment right to comment on the case anonymously.

These are perfectly reasonable legal arguments for someone to make, if they find themselves in the position where their right of anonymous free speech and potentially their safety is threatened by a malicious subpoena in a court proceeding. Those of us who are watching the O.o that starts with G and ends with E and has “amergat” in the middle know that there is real truth to the fact that sometimes, the veil of anonymity is necessary for safety.

So if you ever find yourself in the situation where you fear for your safety because of malicious discovery attempts, find yourself a lawyer immediately, so you can quash that subpoena.

And that is why the judge read the letter and understood it as a motion to quash any subpoenas relating to pubnt, and entered it on the docket as such. Good for the judge.

Now, I said that these are perfectly reasonable legal arguments. The other problem pubnt will have is a factual one. Jane will probably be able to explain, based on pubnt’s own tweets, why it looks like pubnt has specialized information about the case. It’s hard to be all “I know nothing, Jon Snow!” when you’ve spent the last few months talking about the fact that you know so much and nobody else knows anything.

I mean, pubnt has claimed multiple times that Ellora’s Cave is flush with cash. Bank balances are not things that the general public knows. Pubnt has claimed that it has proof of libel. If so, that would be discoverable information, and Jane Litte therefore has the right to know it. Pubnt claims that EC is about to merge with one of the Big Five–a fact so bizarre that, if true, it would surely be under embargo right now, and so pubnt’s claimed knowledge of it demonstrates that it has internal knowledge of EC’s workings. And that’s only going back to very late January; I’m sure we could harvest hundreds more tweets of claimed insider knowledge.

There are really only two possibilities. Either (a) pubnt has been lying to us all (quelle surprise), or (b) pubnt has inside knowledge of EC’s affairs and thus should be subject to discovery requests. Pubnt’s main problem is that in order to explain why they should not be subject to a subpoena, they will have to go to the court and say, “We are lying sacks of shit and you cannot trust a word we say.”

This is not a particularly comfortable legal posture.

One last question that has been bandied about on Twitter: Is the Nut in danger of…anything, for sending the Court a screed that exhibits pubnt’s typical antifactual connection to reality? There are some things in the letter that are almost certainly what we would call “lies”–I think we’ve established pretty firmly that the Nut is not a legal blogger, at least not in the sense that the Nut has a blog. Or that the Nut knows beans about law.

But the Nut hasn’t actually said this was on penalty of perjury. It wasn’t even presented to the Court as a formal legal filing. It was basically just a letter that said “HELP MEEE PLEEEEEEAAASSEEEEE THERE ARE WOLVES ON TWITTER.” If the Nut wants to eventually file something with the court to prove its point, it will eventually have to submit…something that could create some danger. But a pro se letter sent to a judge is highly unlikely to result in sanctions of any kind.

What the Nut really, really needs right now is legal advice. Good thing that one of them’s a lawyer.

Hollywood still not causing end of world for authors

[EDIT, 2/3 @7:24 AM: In light of Tess Gerritsen’s comment below, I’m not willing to stand by this any longer. I’ll make a few notes in the text as to why.]

Standard disclaimer: This is my own opinion, and not the opinion of any other organization.

Tess Gerritsen has a blog post out explaining why every author who sells to Hollywood or wants to do so should be up in arms about the dismissal of her complaint. Here’s why I’m not raising my arms into anything more than a shrug.

To recap, for those who haven’t heard and don’t know what is going on: Tess Gerritsen wrote a book called Gravity and sold the film rights to New Line Productions. She did quite a bit of work on a screenplay, but Hollywood being Hollywood, neither the book nor the screenplay never got made into a film. Or so she thought.

Many years later, director Alfonso Cuarón wrote a screenplay about an astronaut who was set adrift in space. This movie, also called Gravity, made a ton of money and received many accolades. Tess Gerritsen was asked how she felt about it, and basically said that the similarities were likely coincidental.

Later, however, she learned that Cuarón had been attached as director to her killed-in-infancy screenplay. And since Warner Brothers (who produced Cuarón’s Gravity), had purchased New Line in the interim, Gerritsen felt that the Gravity that was produced was her Gravity, and she was entitled to compensation under the contract. So she sued.

The district judge dismissed her complaint, claiming essentially (and here I’m skimming over a TON of corporate law that I do not care to rehash) that WB and New Line were separate entities, notwithstanding the fact that WB had purchased New Line.

Here’s the case in a nutshell: Gerritsen has a contract with New Line. If WB and New Line are separate entities, Gerritsen does not have a contract with WB, and cannot claim that WB breached her contract. If WB and New Line are the same entity, Gerritsen does have a contract with WB, and can claim that WB’s activities breached her contract with New Line.

Make sense?

I’m going to add another wrinkle. Gerritsen says the following:

Please note: this is not a case of copyright infringement. Warner Bros., through its ownership of New Line, also controls the film rights to my book.

I’m going to ask a question: Why isn’t this a case of copyright infringement? No, really. Why isn’t it one?

[Edit, 2/3 @7:25 AM: There is a much better answer to this question than what I originally said, which Gerritsen provides in the comments below: It’s not a case of copyright infringement because, having transferred this particular exclusive right to New Line, she no longer has standing to sue for copyright infringement. I’m leaving the original text up because I don’t believe in deleting my mistakes, but I will strike through as of this AM. Having not read either the book or Gerritsen’s screenplay, and not knowing how much Cuarón had access to, I’m not willing to judge whether there would hypothetically have been a case of infringement. Since she can’t bring one, it would be unreasonable for me to infer that there wouldn’t have been one from the lack of such a suit.

Mea culpa: I was importing my understanding of how a suit would work from how book contracts work, where I essentially license my rights to a publisher but retain enough of an interest in the copyright where I could sue. It shouldn’t have come to me as a surprise that Hollywood takes more rights, but I honestly didn’t consider that possibility. That’s my bad.]

The premise of Gerritsen’s book is an outbreak of a deadly virus in space, something that is not present in Cuarón’s film. Gerritsen says that she wrote a scene for the screenplay in which the international space station was destroyed by satellite debris, something that also happens in Cuarón’s Gravity.

The thing is, without more, Gerritsen has described an idea: a person in space sees their sanctuary destroyed by satellite debris. Gerritsen was not the first to come up with this idea, and she’s unlikely to be the last. Even if Cuarón was inspired by reading Gerritsen’s screenplay, unless he copied the expression of her idea, rather than just the idea itself, he would owe her absolutely nothing. That’s how our copyright law works. We get to see other people do things and say, “Ooh, good idea,” and do our own execution of it. If we had any other rule, we would all get sued. We all, to some extent, get ideas from the world around us.

So although Gerritsen does not say this, I suspect that there is a darned good reason that Gerritsen did not plead copyright infringement: Because she would not have a colorable case of infringement.

If she had a colorable case, she would (or at least should) have plead infringement in the alternative: Either WB had a contract with her and they breached it; or they did not have a contract with her, in which case they impermissibly infringed on her copyright in her book and screenplay. She gets to win either way.

Gerritsen did not plead infringement in the alternative, and since she appears to have lawyers who are competent in every other respect, I’m going to guess that this means that she was told that in the absence of a contract, Cuarón’s movie would not have infringed on her copyright. Based on what I’ve seen (which without a direct screenplay-to-screenplay comparison is very little), that’s probably right.

If that’s the case, then this line in Gerritsen’s blogpost strikes me as remarkably alarmist:

It [the district court’s decision] means that any parent film company who acquires a studio, and also acquires that studio’s intellectual properties, can exploit those properties without having to acknowledge or compensate the original authors.

It’s actually a lot simpler than that.

If Cuarón’s Gravity does not infringe on Gerritsen’s Gravity, WB had absolutely no need to acquire New Line in the first place to get access to Gerritsen’s intellectual property. WB did not need Gerritsen’s permission to exploit that intellectual property, because–recall–Gerritsen is not claiming that Cuarón’s Gravity infringed on her Gravity. Paramount, for instance, could have produced Cuarón’s Gravity. It would not have needed to acquire New Line to do it.

I am just not alarmed by the prospect of a Hollywood studio making a bunch of movies that it is legally allowed to make without compensating people whose rights have not been infringed. I can’t imagine why any Hollywood studio would have an incentive to go and buy other studios just so that it could make movies that it’s legally allowed to make without buying those other studios in the first place. And I’m going to suggest that we should wait to be alarmed by Hollywood’s unauthorized exploitation of intellectual property rights until we have a case where the artist is actually claiming that Hollywood exploited their intellectual property without authorization.

[Edit, 2/3 at 7:29 AM: Once again, I’m not going to stand by this conclusion. I will probably revamp and rethink. Maybe we should be alarmed. But I need a little more time to process, so I may not have my full reaction up until tonight.]

EC v. DA: Housekeeping & a note about Our Dear Legume #notchilled

Disclaimer: These are my own views, and not the views of any other organization with which I might be associated.

So, the Case Management Conference happened on Monday, and there were a flurry of things posted on the docket. I’ll link to the information for those here, provide a little that didn’t show up on the public docket for whatever reason, and point out one or two tiny little things.

Here’s the new stuff that has appeared on the docket since my last post (as a note, Deirdre Saoirse Moen usually posts these with greater alacrity than I do; I tend to put them off if I think they’re boring.)

In preparation for the Case Management Conference, the parties filed the following:

  • Initial Disclosures: These are the Initial Disclosures of Ellora’s Cave. You can read more about initial disclosures here. Note that the docket lists initial disclosures filed by all plaintiffs. I’ve been told that the defendants filed initial disclosures as well, but those aren’t on the docket for some reason (more on this later).
  • A report of the parties on their planning meeting and consent to the exercise of the jurisdiction of a magistrate judge.

    These things are really mostly administrative. The only thing of remote interest in the two is this section in the report of the parties: “Defendant expects to file a motion for summary judgment after Plaintiff completes its discovery. Discovery shall be suspended while summary judgment motions are pending.”

    First, a note on the difference between a motion for summary judgment and a motion to dismiss, and those with legal training, don’t smack me because yes, I’m not going to go into full detail here.

    Motions to dismiss are generally made because a party believes the case is defective on the face of the complaint in some way (e.g., the court does not have jurisdiction, the statute of limitations has passed, or the person thinks that they’ve stated a claim, but in fact, the things that happened to them are just a bum rap, and not actionable at law). (It’s more complicated than that, but let’s just go with that.) (Obviously, there are other reasons than I’ve listed, but that’s the basic idea.)

    A motion for summary judgment is generally made because a party believes the case cannot be won on the basis of the evidence that has been compiled.

    By analogy: Imagine that you’re trying to figure out if a book falls in the genre of fiction labeled as a thriller. You can read the back of the book, and say, “Huh. This is a nonfiction biography of Desmond Tutu; it’s probably not a thriller.” Or you can read the book, and say, “Huh. This was not a fictional thriller; it was a biography of Desmond Tutu.” (There is nothing wrong with biographies of Desmond Tutu, but they are not fiction, and no matter how thrilling the subject matter, they also are not genre thrillers.)

    A motion to dismiss will happen when you don’t have to read the evidence to determine that there’s a serious problem. A motion for summary judgment happens when you have the evidence compiled, and you can look at it and say, “Look, this doesn’t add up to what they promised in the blurb.”

    So Jane is essentially saying that after Ellora’s Cave compiles all its evidence, she believes that she will be able to demonstrate that what they have doesn’t add up to what they promised in the blurb. If she can do this before she has to subpoena a bunch of people and spend even more money, all the better.

    What does this mean? Well… do I have to tell you that it doesn’t mean whatever random people claiming to be legal bloggers think that it means? I didn’t think so. It means that Jane hopes that EC will not be able to prove its case once it has conducted discovery. That’s what it means. We will see.

After the Case Management Conference, the judge filed the following:

So there you are. Boringness!

But here is one tiny thing of potential interest: the defendants’ witness list. It didn’t end up on the docket, but I’m posting it here. You’ll notice that they identify more people than the plaintiffs do, including a dear friend of ours. Or…something like a dear friend. You know.

@PubNT Twitter account

The Pub Net Twitter account has made a series of statements on Twitter since the outset of this case, that are with obvious knowledge of the case at hand.  The author behind this Twitter account will have additional information as to the operations of Ellora’s Cave.

Tina Engler

Tina Engler is the founder and head of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

Patty Marks

Patty Marks is the CEO of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

Susan Edwards

Susan Edwards, at all relevant times, was the COO of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

Raylene Gorlinksy

Raylene Gorlinksy is the Publisher of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

Whitney Mahlik

At all times relevant hereto, Whitney Mahlik was the Managing Editor of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave

Courtney Thomas

At all times relevant hereto, Courtney Thomas was the Chief Financial Officer of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

So there you are: a list of the people who will be subpoenaed in due course.

Thank you, and good night.

EC v. DA: Remand motion and general updates #notchilled

Hi everyone. First of all, the reminder: I’m posting this in my personal capacity, and not as a representative of any other organization.

I promised on Twitter days ago that I would post (briefly) about the remand motion. I’ve been buried head down in an upcoming book launch and haven’t had the free brain space to tackle this.

So here follows an update, and a very boring discussion of the very boring remand ruling.

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