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…