exhibit ee - trolls · lee & hayes, pllc 601 west riverside avenue, suite 1400 spokane,...

EXHIBIT EE

Case: 2:14-cv-00821-TPK Doc #: 78-32 Filed: 02/29/16 Page: 1 of 54 PAGEID #: 1070

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HONORABLE THOMAS O. RICE J. CHRISTOPHER LYNCH, WSBA #17462 JEFFREY R. SMITH, WSBA #37460 RHETT V. BARNEY, WSBA #44764 LEE & HAYES, PLLC 601 W. Riverside Avenue, Suite 1400 Spokane, WA 99201 Phone: (509) 324-9256 Fax: (509) 323-8979 Emails: [email protected]

[email protected] [email protected]

Counsel for Defendant Ryan Lamberson

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

ELF-MAN, LLC,

Plaintiff, vs. RYAN LAMBERSON,

Defendant.

No. 2:13-CV-00395-TOR REPLY DECLARATION OF J. CHRISTOPHER LYNCH IN SUPPORT OF DEFENDANT’S MOTION FOR ATTORNEYS’ FEES

I, J. Christopher Lynch, declare as follows:

1. I am over 18 years of age and am competent to testify. I make this

declaration based on my own personal knowledge. I am one of the attorneys for REPLY DECLARATION OF J. CHRISTOPHER LYNCH IN SUPPORT OF DEFENDANT’S MOTION FOR ATTORNEYS’ FEES - 1

LEE & HAYES, PLLC 601 West Riverside Avenue, Suite 1400 Spokane, Washington 99201 Telephone: (509)324-9256 Fax: (509)323-8979

Case 2:13-cv-00395-TOR Document 95 Filed 08/11/14Case: 2:14-cv-00821-TPK Doc #: 78-32 Filed: 02/29/16 Page: 2 of 54 PAGEID #: 1071

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Defendant, Ryan Lamberson (hereinafter, “Mr. Lamberson”). Here is my reply to

the Declarations of Kurt Uebersax, Patrick Paige, Michael Patzer, Daniel Macek,

David Lowe, and Maureen VanderMay. I acknowledge the length of this

Declaration, and inform the Court I have attempted to convey the many important

facts as efficiently as I could.

REGARDING THE DECLARATION OF MR. UEBERSAX, ECF NO. 87.

2. Mr. Uebersax at paragraph 2 testifies that he is an Executive Producer

of Elf-Man. He does not state if he is an officer, director, manager, or shareholder

of plaintiff Elf-Man LLC. If not, Elf-Man LLC presents no witness to its position.

Mr. Uebersax does not state if he made Elf-Man LLC’s litigation decisions. He

does not state if Elf-Man LLC is aware of the status of its lawsuits, including the

potential for judgments and sanctions against it. He does not state if Elf-Man LLC

is aware that its counsel rejected opportunities to settle. He does not state if Elf-

Man LLC is aware that an apparently fictitious declarant “Darren M. Griffin” was

used in six federal districts in Elf-Man cases. Mr. Uebersax does not explain the

scheduling conflict that purportedly prohibited Elf-Man LLC from appearing at its

noted Fed. R. Civ. P. 30(b)(6) deposition.

3. Mr. Uebersax at paragraph 5 testifies that he was informed Elf-Man

was available online for free. He does not explain how Elf-Man came to be initially

REPLY DECLARATION OF J. CHRISTOPHER LYNCH IN SUPPORT OF DEFENDANT’S MOTION FOR ATTORNEYS’ FEES - 2



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seeded into BitTorrent on November 11, 2012, three weeks before its public DVD

release date on December 4, 2102. Exhibit A is a screen capture my staff did this

week showing the “hash” ‘DD72 copy of Elf-Man at issue in all Elf-Man cases,

with an initial seeding date of November 11, 2012, still to be publicly available and

easily accessible on BitTorrent. Exhibit A shows the size and runtime of the file,

identification of the initial seeder by screen name, and comments to and from the

initial seeder by other screen names. Mr. Uebersax does not describe DMCA or

other proceedings by Elf-Man LLC against any hosts of these links or the initial

seeder. He does not describe investigation by Elf-Man LLC to determine the

apparent leak of its pre-release materials. He does not describe any Elf-Man pre-

release marketing, or how any such awareness campaigns may have been sufficient

to entice our variety of 180 honest defendant-citizens in the Eastern and Western

Districts of Washington to simultaneously yearn for unknown elfian fare and to

seek, find, and copy Elf-Man, some time prior to its release date, as Mr. Lamberson

is accused of doing.

4. At paragraph 8, Mr. Uebersax references initial seeding of

Expendibles 3 into BitTorrent three weeks prior to its scheduled release in theaters.

The owners of that copyright promptly sued the web-hosts of the torrent-file links.

Lions Gate Films v. John Does, 2:14-cv-06033, Central District of California. That




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Complaint, ECF No. 1, at paragraph 10, explains the pre-release leak as theft of

one high-quality digital copy of the film. The stolen copy was then initially seeded

into BitTorrent. The lawsuit was filed July 31, 2014, and, on August 4, 2014, the

Court enjoined the BitTorrent websites that had hosted the torrent-file links. ECF

No. 17. Lions Gate explains the reason for the initial seeding of Expendibles 3 into

BitTorrent three weeks before its release date: theft of one high quality digital copy

of the work. Mr. Uebersax offers no explanation for the initial seeding of Elf-Man

into BitTorrent three weeks before its release date. The torrent-file link for the

‘DD72 copy of Elf-Man at issue in all the cases is still up today. Exhibit A. In this

sense, Mr. Uebersax’ reference to Expendibles 3 is not really apt.

REGARDING THE DECLARATION OF MR. PAIGE, ECF NO. 90.

5. At paragraphs 1-24, Mr. Paige presents a useful summary of his

education, qualifications, and experience. Messrs Patzer and Macek do not.

“Darren M. Griffin” did not.

6. At paragraphs 25-38, Mr. Paige describes a test he undertook using

four computer servers and seeded movies into BitTorrent. He used Wireshark

software to record the IP addresses of connections the four servers made to

machines at “IPP International U.G.” Mr. Paige says that his list of recorded IP

addresses matches a list that someone at IPP made using something called TCP




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Dump; neither list is provided. Mr. Paige concludes that IPP’s servers connected to

his four test servers, and that IPP’s software accurately recorded the IP addresses

of his four test servers when they made this deliberate connection. No IPP witness

is provided as to this test.

7. Mr. Paige’s declaration was executed July 24, 2013, and filed on

behalf of Malibu Media, a prolific copyright plaintiff in Case No. 13-cv-2707-

WYD in the Northern District of Illinois. On October 1, 2013, Tobias Fieser of IPP

also submitted a declaration in that case. ECF No. 6-5. Mr. Fieser has testified at

least twice that Mr. Macek works for IPP; for example, as I earlier cited, ECF No.

__, and in Malibu Media, LLC v. Don Bui a/k/a Huy H. Bui, 13-cv-00162-RJJ

(W.D. Mich. 2014), ECF No. 31-3. Mr. Macek tells this Court he works for Crystal

Bay Corporation, ECF No. 88, as did Ms. VanderMay.

8. Mr. Paige does not explain if IPP and/or TCP Dump have any

connection to software used in the Elf-Man investigations. No one from IPP or

Crystal Bay Corporation or Excipio explains that they are the same. Elf-Man

LLC’s District of Colorado complaint says it hired IPP to conduct the

investigation, but the Declaration of “Darren M. Griffin” submitted in that case

says he was working for Crystal Bay Corporation. So, maybe the software is the

same, and maybe there is a witness who could say so to give meaning to Mr.




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Paige’s testimony (and thereby provide an overt connection between IPP

International U.G. and Crystal Bay Corporation.) But, in any event, Mr.

Lamberson does not challenge that BitTorrent-user IP addresses, if displayed by a

BitTorrent client however accurately, could be captured by a human or recorded by

a machine. The software is not the issue in this case, it is the people.

REGARDING THE DECLARATION OF MICHAEL PATZER, ECF NO. 89.

9. Mr. Patzer does not state his education, qualifications, or experience.

He does not state his citizenship or the location where he executed the declaration.

He does not explain the address given for him in the Initial Disclosures which has

been challenged as deceptively incorrect. ECF No. 50, p. 9. He does not explain if

he is a licensed private investigator. He does not explain if he is an American

attorney or has any legal training to qualify the legal conclusions he makes as to

what constitutes “infringement” at paragraphs 4, 5, and 9 about Mr. Lamberson.

10. At paragraph 2, Mr. Patzer says he has extensive knowledge about

Excipio GmbH, a German company, and that he is an independent contractor to

Excipio. He says Excipio “owns” a “data collection system” that he designed,

implemented, monitors, and maintains. Mr. Patzer does not explain his live

testimony in the Eastern District of Pennsylvania that he works for IPP. Malibu

Media v. Does, E.D. Penn., Case No. 2:12-cv-02078, ECF No. 205 at page 54-55.




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At that same hearing, Mr. Fieser testified that both he and Mr. Macek work for

IPP. Id. at p. 97. Mr. Fieser recently testified that he and Mr. Macek work at IPP.

Malibu Media, LLC v. Don Bui a/k/a Huy H. Bui, 13-cv-00162 (W.D. Mich. 2014),

ECF No. 31-3.

11. At paragraph 4, Mr. Patzer says that Excipio contracts with Crystal

Bay Corporation about Excipio’s data collection system. He does not identify any

people from Crystal Bay Corporation who are responsible for the relationship with

Excipio or APMC. He does not acknowledge the existence of “Darren M. Griffin,”

declarant about the software used by Crystal Bay Corporation. He does not explain

how the data about which he testifies relates to the data about which Mr. Macek

testifies. He does not explain whether he, or Mr. Macek, or Excipio, or Crystal Bay

Corporation are licensed to conduct private investigations under RCW 18.165, or if

temporary foreign waivers to the licensure requirements were obtained under RCW

18.165’s regulatory provisions.

12. At paragraph 6, Mr. Patzer testifies that the software is proprietary.

His software joins BitTorrent swarms, but not like a common participant, because

it is deliberately only sending out requests asking participants to send tiny pieces of

a movie, and then entrapping that data when someone obliges the request. This

entrapped upload data is then packaged with testimony from Mr. Patzer and Mr.




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Macek and offered as the entirety of plaintiff’s case unless the defendant confesses.

Mr. Patzer testifies that any request by a swarm participant to his software to send

a piece to the participant is rejected. This is an important admission: the software

only makes requests for pieces and then entraps the IP address of those who oblige,

but the software does not send a piece to any IP addresses, nor does it monitor

whether the subject IP address had any uploading or downloading technical

exchange with any other member of the swarm. Therefore, there is no evidence AT

ALL that ANY defendant downloaded ANYTHING.

13. Most importantly, at paragraph 10, Mr. Patzer reveals the amount of

data transmitted between the investigator’s machine and the purported IP address

associated with Mr. Lamberson: 16,397 bytes. After 16 months, plaintiff finally

reveals the magnitude of its evidence. The ‘DD72 rip of Elf-Man is 746,609,456

bytes and the run-time is 87 minutes. See Exhibit A. Mr. Patzer does not explain

whether the 16,397 bytes come from a part of Elf-Man covered by its copyright, or

if the bytes come from a part of Elf-Man covered by the copyright disclaimers. He

states that some of the 16,397 bytes are devoted to data about the hash, plus some

of the bytes presumably are devoted to the foreign computer’s “handshake” and

request for the piece transmitted. Nevertheless, even assuming all 16,397 bytes are




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devoted to transmission of the piece of a copyrighted aspect the movie, the

transmitted piece is imperceptible. Here is the math:

14. (Bytes transmitted/total bytes) times (total seconds of run-time) =

seconds of run-time of bytes transmitted.

15. (16,397/746,609,456) x (87 x 60) = 0.114641 seconds or 115

milliseconds.

16. My staff earlier decrypted the PCAP file and saw only one exchange:

the handshake and the transmission of one block of one piece which we estimated

at 241-482 milliseconds of movie runtime based on common BitTorrent piece and

block sizes, noting that the trend is toward smaller pieces than we used in our

estimation. ECF No. 68, p. 4. Mr. Patzer confirms that whatever was transmitted

was under 115 milliseconds.

17. The transmitted piece is humanly imperceptible. 16,397 / 746,609,456

is an impossibly small number: a ratio to the whole of less than 2 of 80,000. In

literary terms, the first of the seven Harry Potter novels is 76,944 words long. If a

plagiarist intent on copying the book got only as far as “Mr. and” of that novel’s

famous first sentence “Mr. and Mrs. Dursley, of number four, Privet Drive, were

proud to say that they were perfectly normal, thank you very much,” would there




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be copyright infringement for copying the “Mr. and”? At least “Mr. and” is

humanly perceptible. 115 milliseconds of video is not.

18. At paragraph 12 Mr. Patzer foreshadows by offering explanations for

several questions not yet asked, but which are entirely relevant to the web of

parties tied to the sanctionable conduct. Given the APMC agreement with Vision

Films dividing the money from the cases between (i) itself, (ii) the investigative

company, (iii) the attorneys, and (iv) the putative rights holders, ECF No. 65, p. 4-

6, it is fair conclusion that Excipio is directly compensated based on use of the

evidence its software creates, even if Mr. Patzer is not. Plus, Ms. VanderMay

demanded that Mr. Patzer be paid to be deposed. ECF No. 39 and page 5.

REGARDING THE DECLARATION OF DANIEL MACEK, ECF NO. 88.

19. Mr. Macek does not state his education, qualifications, or experience.

He does not state his citizenship or the location where he executed the declaration.

He does not explain the address given for him in the Initial Disclosures which has

been challenged as deceptively incorrect. ECF No. 50, p. 9. Mr. Macek does not

explain if he is an American attorney or has any legal training to make the legal

conclusions he makes as to what constitutes “infringement” at paragraphs 6, 8, 9,

10, and 15.




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20. Mr. Macek does not explain how he works for Crystal Bay

Corporation of South Dakota, since he likely is a German national residing in

Germany. He does not explain any distinction between Ms. VanderMay’s

description of him as a salaried employee of Crystal Bay Corporation, and his

description as a consultant to Crystal Bay Corporation, ECF No 88. He does not

explain Mr. Fieser’s testimony that Mr. Macek works for IPP. He does not explain

why the telephone number given for him in the Initial Disclosures is answered

“GuardaLey,” which it was when I called it.

21. Most notably, Mr. Macek does not address the existence of Elf-Man

LLC witness “Darren M. Griffin” of Crystal Bay Corporation “in its technical

department,” whose existence Mr. Lamberson challenged in these Motions. ECF

No. 78, p. 5; ECF No. 79, pp. 6-7; ECF No. 80, pp. 7-8; ECF No. 81, pp. 3, 7-11.

No one from Crystal Bay Corporation submits a declaration to explain the

challenged existence of “Darren M. Griffin.” No one from IPP, APMC, Vision

Films, GuardaLey, or Elf-Man LLC submits a declaration to explain the challenged

existence of “Darren M. Griffin.” None of plaintiff’s declarants regarding these

motions explains the challenged existence of “Darren M. Griffin.” Unless plaintiff,

its counsel, its declarants, and its representatives all were unable to appreciate the

significance of four overt challenges to the existence of Elf-Man LLC’s declarant




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“Darren M. Griffin,” and for that reason failed to explain him, our supposition that

“Darren M. Griffin” does not exist appears to be true. The first rule of challenged

existence: rebut the challenge if you exist, otherwise, forever hold your peace.

22. Mr. Macek’s declaration is nearly identical to declarations of “Darren

M. Griffin” filed by Elf-Man LLC, for example, Elf-Man, LLC v. John Does 1-85

in the District of Colorado, Case No. 13-cv-00686, ECF No. 3-1.

23. At paragraphs 9-20, Mr. Macek describes the use of un-defined

software at Crystal Bay Corporation that joins BitTorrent swarms but only to

entrap data as Mr. Patzer explained Excipio’s software does. Like with Mr.

Patzer’s paragraph 6, Mr. Macek’s narrative at paragraphs 9-20 accurately

describes behavior expressly covered by the Washington Private Investigator laws,

RCW18.165.010 et seq.: data was created by the investigator as evidence for

admission into court. This perfectly describes the declarations of Mr. Patzer and

Mr. Macek.

24. At paragraph 10, Mr. Macek says that Crystal Bay Corporation uses

forensic technology to collect IP addresses. He does not identify the software by

name or state if it is licensed from Excipio. He does not explain how the data about

which he testifies relates to the data about which Mr. Patzer testifies.




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25. At paragraph 15, Mr. Macek testifies that Crystal Bay Corporation

does a visual comparison of the copy of the movie it downloads to a control copy

of the movie. He does not state that he performed this comparison or if it was done

in this case, and by whom.

26. Paragraph 18 is awkwardly worded, but it and paragraph 19 combine

to claim that there is a record during a one-second time frame at 4:39:20 PM (time

zone un-stated) on December 2, 2012. Mr. Macek does not testify as to the size or

content of the piece transmitted. Apparently, no one knows the content of the 115

milliseconds, or whether it covers the expressly disclaimed content of the

copyright. Paragraphs 16 and 19 also falsely intimate that Crystal Bay

Corporation’s software tracks “copying and distributing” of the movie, but, as Mr.

Patzer explains, the Excipio software only tracks uploads by the defendant, not

downloads. In other words, the software tracks “distributing” but not “copying.”

REGARDING THE DECLARATION OF DAVID LOWE, ECF NO. 86.

27. Mr. Lowe testifies about our initial June 13, 2013, conversation at

paragraphs 2-5 of his Declaration. I have previously testified about this 66-minute

conversation. ECF No. 64, at p. 8. At the time of our call, on the morning of

June 13, Mr. Lowe had not appeared in the case. He told me he was considering

appearing. I hoped as a result of our call that he would tell whoever was proposing




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to hire him to pay Mr. Lamberson instead to settle the case and save this entire

post-judgment aspect of it, but that did not happen. Mr. Lowe appeared for Elf-

Man LLC later that afternoon, but he never indicated during our call that his

appearance was certain or imminent.

28. I was trying to get Mr. Lowe to look closely before deciding to

appear. I warned him about the procedural posture in which plaintiff was

entangled, especially given Ms. VanderMay’s ethical dilemma with “plaintiff’s

representatives” forcing her withdrawal. I told Mr. Lowe that I could not

understand how any attorney could undertake the representation and not face the

same ethical dilemma. He disagreed.

29. I used a measured tone to explain what I knew. I could hear him

typing, and I occasionally slowed my speech so he could take notes. I never raised

my voice, but I did use the words “scam” and “sham.” I tried to make productive

contributions to resolve the case. I probably was “vitriolic” as Mr. Lowe calls me,

assuming that term means “filled with bitter criticism.” I was “filled with bitter

criticism” because my client was wholly innocent, and plaintiff’s representatives

were avoiding discovery on every relevant point.

30. I never said plaintiff was a sham company, although I did say so of

Crystal Bay Corporation, because it is a sham company, as is evident by the




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Declarations of “Darren M. Griffin” from “its technical department,” who may not

exist. I said plaintiff might be a victim of a scam perpetrated by its representatives,

because Elf-Man LLC had exposure for attorneys’ fees even though it appeared

Elf-Man LLC had not been making the decisions in the case.

31. I did claim Ms. VanderMay had been dishonest about service of

objections to discovery about APMC, as I have testified, ECF No. 58 at p. 4.

32. I can understand why Mr. Lowe might characterize my narrative as

“wild accusations about conspiracy theories.” The accusations are true. They are

wild in the sense that they involve mass-scale fraud perpetrated on the court by

plaintiff’s representatives acting in a manner to obfuscate their identities and

relationships. I wanted Mr. Lowe to know as much as I knew about the back-office

truth of the BitTorrent cases filed in Washington State. I also wanted to gauge to

what extent Mr. Lowe cared about this truth. I was interested if Mr. Lowe would

present a plausible explanation of the points we assembled, or if he would be

astonished by the points and offer to look into them, or if he would deny there were

any points at all.

33. The night before our call, I investigated to see if Mr. Lowe was

admitted in the Eastern District, which was confirmed. Mr. Lowe was the

plaintiff’s attorney in the only other BitTorrent case filed in this District (other than




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Ms. VanderMay’s two cases), Canal Street Films v. Does 1-13, Case No. 13-cv-

3001. I examined the docket from that case. I have previously testified about two

anomalies.ECF No. 68 at pages 2-3. The copyright certificate is not executed by

Canal Street Films, it is executed by a “Josh Partridge” who worked for

IPP/GuardaLey at the time. The declaration of William Gorfien claims he was a

consultant to “IP Squared Technologies” of Delaware “in its technical

department,” but the chart of “observed infringement” commenced on

September 21, 2012, before IP Squared Technologies was even incorporated

November 20, 2012. ECF No. 1 at Ex B. Mr. Gorfein has submitted Declarations

in R&D Film 1, LLC v. Does 1-57, Case No. 12-cv-05821 in the Northern District

of Illinois, ECF No. 8-1, claiming he was with “Crystal Bay Corporation” of South

Dakota “in its technical department” not “IP Squared technologies” of Delaware

“in its technical department.”

34. I reviewed the docket of the Canal Street Films case and it fit the

seven-step pattern of other BitTorrent cases that I had figured-out, including the

Elf-Man cases brought by counsel other than Ms. VanderMay. The seven-step

pattern includes steps from the script of the APMC presentation, ECF No. 65-3,

and assumes there is an anti-piracy management company such as APMC

coordinating the collection of the data and the prosecution/resolution of the cases,




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as appears to be the case. Here is the seven step pattern from the point of view of

the Anti-Piracy Management Company and the counsel it hires to represent the

nominative plaintiff:

35. Step One: Participate in a BitTorrent swarm and collect IP addresses.

Geolocate those IP addresses and divide into federal judicial districts. File a

Complaint against a number of John Does, at least one for each IP address

geolocated to that district. Draft the Complaint alleging that each Doe has been

“observed infringing” as a legal conclusion.

36. Step Two: Ask the Court for a waiver of the federal rules in your

favor to allow early discovery. Use a declarant not stating his or her education,

qualifications, experience, citizenship, or location to cover the typed-up list of IP

addresses from Step One. The APMC Prezi presentation states about the Step Two

declarations: “And we hope the judge doesn’t question his qualifications too

much.” Regardless his or her nationality, have the declarant state an IRS W-2 or

1099-type employment relationship with an American shell company in “its

technical department,” hoping this creates a distinction between the anti-piracy

management company and the American shell company, even though the people

may be the same. Do not advertise the American shell company, but maybe build it

a false-front website for the pretext of being in business, because the declarants




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will testify the American shell company is in business, with an American address.

Pretend the American shell company has a license to use data-capture software

from Excipio or maybe IPP, or maybe GuardaLey. Pretend the declarant is

working for the American shell company “in its technical department” for the

private investigative work he or she does for a foreign company that is not named.

Do not file American federal or state tax, employment, or immigration paperwork

for any of the money or people involved with the American shell company

(because pretend-employment scenarios do not trigger actual obligations?) Do not

have the declarant volunteer that the evidence associated with each Doe may be

imperceptible. Do not have the declarant volunteer that the software does not

actually monitor copying by the Does.

37. Step Three: Serve subpoenas. Discover the ISP subscribers by name

and personal information. Then reach out to these people – not by naming them in

the lawsuit and serving them, but by certified letter. Use the existence of the

lawsuit to ask the subscriber to give you money, or tell the subscriber he or she

could never really prove their innocence, implying that giving you money could

resolve it. Have a plan for situations where a subscriber claims innocence but is

willing to give you money. If the subscriber will not give you money, tell the

subscriber one way out is to find a real “infringer” who will give you money, and




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then use the existence of the lawsuit to ask those other people to give you money

(“this Doe could be you.”) If the subscriber or “referral-Doe” has no idea what you

are talking about (due to errors in Step One) and will not give you money, do not

apologize, but tell the subscriber or referral-Doe it remains his or her problem and

that the court will have to decide, implying that giving you money could resolve it.

Pleas of innocence will occur often: “I have never heard of this movie. I did not

copy it.” Be prepared to tell honest, sincere people in your judicial district that they

cannot be believed or trusted. Alternatively, use Step 3 not to negotiate at all with

any subscribers so that later you can honestly tell this to a judge who asks. For

example, this alternative strategy might be employed by a legitimate copyright

holder trying to use BitTorrent time and place data to determine people-to-people

connections to arrive at an initial seeder, or to arrive at the location the .torrent file

links for the movie. Tell the judge you are using this strategy if necessary.

38. Step Four: Wait. Do not amend the Complaint to name subscribers,

request summonses, and commence service. Serving Amended Complaints with

named defendants leads to Answers and Scheduling Conferences and Initial

Disclosures and discovery – risking exposure of Steps One and Two. Be mindful

of Fed. R. Civ. P. 4(m) requiring service within 120 days of filing of the

Complaint. Continue Step Three.




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39. Step Five: Ask the Court for another waiver of the rules in your favor.

The Court can waive Rule 4(m), so ask for as much time as possible to effectuate

service. Continue Step Three.

40. Step Six: Repeat the request for waiver of Rule 4(m) as many times as

the Court will allow. Continue Step Three. If you make the mistake of naming

subscribers and serving them, or if the Court insists you do so, use waivers of

service to delay any subscriber’s time to Answer, continue Step Three, and then

skip to Step Seven before an Answer is filed.

41. Step Seven: Then, when the Court will no longer extend the time for

naming individuals and serving them, voluntarily dismiss the action without

prejudice under Fed. R. Civ. P. 41(a)(1) before anyone is named or served.

Alternatively, wait until the Clerk dismisses for want of prosecution. Divide the

money people gave you among the anti-piracy management company first, and

then the investigators, the attorneys, and the agents for the rights holder second.

Presumably, Step Three might remain viable until the statute of limitations runs.

Finally, if a defendant does answer, ask them to give you money, appealing to the

logic of litigation economics. As a last resort, use a longer, inadmissible list of

erroneous alleged copyright infringement to ask the defendant to give you money.

If you become absolutely certain the defendant will not give you money, ask the




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court to dismiss under Fed. R. Civ. P. 41(a)(2), criticizing the defendant’s defense

as wasteful and unnecessary. Try to accomplish this before any defendant expects

discovery on the contentions of the Complaint or the investigation. If everything

goes wrong and judgment is entered against the customer/client of the anti-piracy

management company, admit owing only $20 in fees and costs under 28 U.S.C. §

1923 and argue that it would chill the American entertainment industry to award

defense attorneys’ fees when an innocent mistake was made in enforcement of a

copyright. If all else fails and there is a judgment, the judgment falls only against

the putative plaintiff, but the other parties in interest, including the foreign

masterminds behind each of the cases and their counsel, may effectively avoid any

liability.

42. Seven steps: file, favor, serve, wait, favor, repeat, dismiss.

43. The docket (attached hereto as Exhibit B) for Mr. Lowe’s Canal

Street Films case shows strong correlation with this seven-step pattern:

44. Step One: On January 3, 2013, Canal Street Films was filed, attaching

the copyright certificate signed by Mr. Partridge of GuardaLey.

45. Step Two: On January 14, 2013, Canal Street Films requested

expedited discovery, ECF No. 5, filing Mr. Gorfein’s Declaration. ECF No. 6-1.




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46. Step Three: On February 12, 2013, Judge Shea granted the Motion in

part and denied it in part in a 14 page Order, expressing several concerns and

placing conditions on the subpoenas. ECF No. 13.

47. Step Four: Mr. Lowe issued the subpoenas and then operated in

privacy as to what he did with the subscriber names revealed, if any. No Amended

Complaint naming the Does was filed; no summonses were issued.

48. Step Five: On May 2, 2013, Mr. Lowe filed a Notice Regarding Status

of Service of Complaint, ECF No. 14, requesting an extension of time to serve,

acknowledging a deadline of May 4, 2013. Judge Shea granted this request on

May 3, 2013, ECF No. 15, allowing an additional 31 days until June 3, 2013, but

Judge Shea noted that no defendants had been named, and he required that any

additional extension request must include a detailed explanation in at least three

areas to satisfy his concerns.

49. Step Six: On June 3, 2013, the expiration date of the time to serve,

Mr. Lowe made another request, ECF No. 16, for a 90-day extension. Mr. Lowe

submitted a Declaration, ECF No. 16-2, to support the request, but without

addressing the three areas as Judge Shea had required. On June 6, 2013, Judge

Shea issued ECF No. 17, ruling no good cause had been shown. Plaintiff failed on

the three requirements: (i) to “identify each action Plaintiff has taken to identify the




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Doe Defendants since the Court’s February 12, 2013 Order;” (ii) to “explain why

the actions could not have been completed by the June 3 deadline;” and (iii) to

explain what steps the “Plaintiff intends to take during these ninety days to

effectuate service.” Judge Shea held the extension request “in abeyance until June

14, 2013,” and required a complete explanation by that date.

50. Step Seven: On June 14, 2013, Mr. Lowe did not provide the

complete explanation required by Judge Shea’s Order, ECF No. 17; instead Mr.

Lowe filed a Notice of Voluntary Dismissal without prejudice, ECF No. 18. The

Notice at page 1 claims “Plaintiff is unable to meet the Court’s timetable, and

therefore voluntarily dismisses the instant action without prejudice.” Plaintiff had

never filed any Amended Complaint identifying the Does, or requested

Summonses, so there was no complete explanation to provide, regardless of the

timetable.

51. In order to confirm or deny my suspicions about these coincidences to

the seven-step pattern, I asked Mr. Lowe in writing after our call if he cashed any

checks during his case, and he did not acknowledge the inquiry. I did use the

pejorative “cash any checks” which I now regret, although I doubt I would have

received a response with any phrasing. The seven-step pattern is corroborated by

the APMC Prezi presentation, including APMC’s “invisibility,” its control over the




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investigation, prosecution and settlement of matters, drafting pleadings from a

foreign country, working with counsel, preparing and signing declarations, and

working with Mr. Macek to do so. ECF No. 65-3.

52. One “mistake” Ms. VanderMay made under the seven-step playbook

was in filing a First Amended Complaint, naming defendants, and serving them –

Step Six above. None of the other Elf-Man counsel did that. Indeed, each of the 14

other Elf-Man cases filed by counsel other than Ms. VanderMay follows the

smooth seven-step pattern outlined above: (i) file, (ii) favor, (iii) serve, (iv) wait,

(v) favor, (vi) repeat, (vii) withdraw. (Attached hereto as Exhibit C are copies of

the docket sheets from the other 14 Elf-Man cases showing this progression.)

Plaintiff’s representatives’ program does not work if people are named, because

then they might defend, triggering Fogerty v. Fantasy, or dismantling the scheme.

Even then, a multi-defendant lawsuit with esoteric theories might lead even the

innocent to oblige a request for money rather than face federal litigation. So, yes,

Mr. Lowe is correct that I “brought up cases [he] worked on last year for an

unrelated client and made allegations about sham litigation in those cases.” ECF

No. 86 at ¶4. His case included a witness who has testified to working in the same

“technical department” at “Crystal Bay Corporation” as “Darren M. Griffin” and




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Daniel Macek. Mr. Lowe’s clients, through their unknown representatives, are not

unrelated.

53. I disagree with Mr. Lowe’s characterization of the scuttled depositions

of Mr. Lamberson and of Elf-Man LLC. He says I agreed to cancel the depositions

in our call on the morning of June 13, but I never would have agreed to cancel a

noted deposition with a lawyer who was not of record in the case. In my call with

Mr. Lowe, he told me that he “could not make it” June 19 for Mr. Lamberson’s

deposition, and that Mr. Uebersax likely “could not make June 20.” I told him that

I was “not surprised” and explained that this was not a personal comment, but

about his client. I was not surprised Elf-Man LLC would not depose Mr.

Lamberson, because this would certainly confirm his innocence. I was not

surprised that Elf-Man LLC was avoiding its own deposition, lest the scheme of its

representatives be exposed, as the 30(b)(6) categories identified in the Notice

would certainly do. Mr. Lowe told me that this was the first Mr. Uebersax had

heard of the deposition. This is the same thing Mr. Crowell had told me on June 2,

2014, when he called me saying he was “non-appearing counsel” for Elf-Man

LLC. I remember telling Mr. Crowell I was not surprised about that either because

I was already under the impression that Ms. VanderMay was not communicating

with Elf-Man LLC, she was only communicating with plaintiff’s representatives. I




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remember telling Mr. Lowe I was “not surprised” because I used that exact quote

in my testimony. ECF No. 58 at p. 9. I never agreed the depositions “would be

cancelled” – why would I? How could I? The lawyer I was talking to was not

representing the plaintiff at the time. Mr. Lamberson took his scheduled day

without pay and was available for deposition at the appointed time on Thursday,

June 19, 2014. ECF No. 69. We were prepared to take the noted deposition of Elf-

Man LLC at the appointed time on June 20, 2014. Mr. Lowe’s claim that I agreed

to cancel the depositions is in error.

54. It is true that I brought up a Philippine document, the APMC exposé I

have submitted to the Court. ECF No. 65 at p. 6. I told Mr. Lowe the document

was relevant because it explained that APMC was acting as investigator, lawyer,

financier, decision-maker, and plaintiff in the case – the real party in interest. I told

him that the exposé expressly mentions Mr. Macek as the person in charge of

technical declarations. I told him that the exposé expressly addresses the technical

declarants: “and we hope the judge doesn’t question his qualifications too much.”

The exposé is about APMC, about harvesting BitTorrent data, about preparing

federal pleadings for lawyers in the United States, and about Messrs. Macek and

Achache. Mr. Achache signed the contract between APMC and Vision Films

purportedly regarding Elf-Man; Mr. Achache has submitted declarations claiming




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to work for GuardaLey. ECF No. 68, p. 3. Mr. Achache, acknowledged President

of APMC, is a connection between APMC, IPP, GuardaLey, and Crystal Bay

Corporation.

55. I did tell Mr. Lowe that Mr. Lamberson would not agree to settle

other than for payment of fees to make him whole. I explained our offers to settle

for no money before the Answer was filed, and that once an Answer was forced,

Mr. Lamberson would expect fees to be paid, given his innocence. I was concerned

these offers were never presented to Elf-Man LLC. I still am concerned about this.

56. At paragraphs 6 and 7, Mr. Lowe insinuates the Motion to Dismiss,

ECF No. 62, was filed prior to Mr. Lamberson’s Motion to Compel, ECF No. 57,

but the earlier ECF number of the Motion to Compel shows it was filed first.

57. The bullet-point examples at paragraph 9 of Mr. Lowe’s declaration

require clarification, so those are addressed in serial paragraphs below:

58. Responding to paragraph 9, point 1: I did not duplicate work with my

associates. The work was necessary. ECF No. 68 at p. 8. Each lawyer has a

different responsibility that I assigned to lower costs to Mr. Lamberson and lost

opportunity to my law firm at its customary rates. Most incidental duplication due

to meetings and joint participation in calls was written down and not billed and is

not part of the fee request. ECF No. 76.




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59. Responding to paragraph 9, point 2: The Motion to Compel was filed

before the Motion to Dismiss. The Motion to Compel was maintained, because

plaintiff could withdraw its Motion to Dismiss if it disagreed with the conditions

we urged the Court to adopt.

60. Responding to paragraph 9, points 3-4: A Motion to Strike, ECF No.

63, was brought against a set of pleadings filed late by plaintiff without leave and

not in the required format of the Local Rules. Plaintiff’s pleadings were late under

LR 7.1. My staff did re-type one of the challenged pleadings showing non-

conformity with LR 10.1. Plaintiff’s current pleadings continue these violations. I

have not submitted any fee request for acts of my staff members.

61. Responding to paragraph 9, point 5: Of course I read cases and used

PACER. Documents filed in federal court provide good evidence. The cases we

examined are not “unrelated” – far from it. The cases are all have ties back to

German-connected BitTorrent monitoring. For example, possibly-fictitious

declarant “Darren M. Griffin” submitted declarations in the Elf-Man cases as part

of a massive campaign of declarations for numerous plaintiffs, each with different

counsel in different jurisdictions. Exhibit D. This use of “Darren M. Griffin”

declarations by different counsel in different jurisdictions cannot be a coincidence

if he does not exist – someone must be “behind” it. Who? Here, Elf-Man LLC




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appointed Vision Films. Vision Films engaged APMC. APMC purportedly

retained Crystal Bay Corporation. Crystal Bay Corporation purportedly hired Mr.

Macek. Mr. Macek works for IPP according to Mr. Fieser. Mr. Macek’s phone is

answered “GuardaLey.” Mr. Fieser and Mr. Macek both use software maintained

by Michael Patzer. Mr. Patzer works for IPP and Excipio. Messrs. Patzer, Fieser,

and Paige are the witnesses for Malibu Media, the most prolific copyright plaintiff

in America. Malibu Media uses IPP’s software. Mr. Patzer’s software is

purportedly used by IPP and Crystal Bay Corporation and is owned by Excipio.

Excipio was connected to APMC through Elf-Man LLC’s discovery responses and

the filing of Mr. Patzer’s Declaration on these Motions. Mr. Achache works for

AMPC and GuardaLey. And so on. So, yes, PACER was used to make connections

between a prolific federal court witness who may not exist and all of these parties:

Elf-Man LLC, Vision Films, GuardaLey, IPP, Crystal Bay Corporation, Excipio,

Messrs. Achache, Fieser, Macek, Patzer, and Uebersax. All of these parties may

have a direct financial stake in any upside of the Elf-Man cases, including the

recent request in this District for Default Judgments in excess of $30,000 per

defendant. All of these parties and individuals with an upside should be before the

Court to share in the downside as well. Otherwise, as it is, only Elf-Man LLC has

exposure for fees and sanctions, and unfairly hampering Mr. Lamberson’s ability




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to collect and exonerating the others. Examination of the issues arising from the

potential non-existence of “Darren M. Griffin” entailed the use of PACER and

about 1,000 additional page charges have been incurred.

62. Responding to paragraph 9, point 6: I did not “endlessly pursue

frivolous theories.” I pursued theories with roots in the misrepresentations of

plaintiff’s representatives. The theories turned out to be true. I have never

challenged the existence of a declarant witness in federal court before, but I did in

the filing of both Motions for Sanctions and the Declarations associated with each

Motion. ECF No. 78 at page 5; ECF No. 79 at pages 6-7; ECF No. 80 at pages 7-8;

and ECF No. 81 at pages 3, 7-11. Plaintiff did not contact me after these pleadings

were filed to clarify Mr. Griffin’s challenged existence. Plaintiff did not submit

any Declaration of “Darren M. Griffin” among its recent pleadings. Plaintiff

submitted the Declaration of Daniel Macek who purportedly works for the same

Crystal Bay Corporation, but he does not confirm the existence of Mr. Griffin. A

“Darren M. Griffin” submitted the Declarations covering the charts of alleged

infringement in all of the other cases for Elf-Man LLC, before 10 federal judges in

six federal districts (each declaration is indexed as Exhibit C.) Ms. VanderMay and

Mr. Crowell did not introduce the Declarations of a “Darren M. Griffin” in the

Oregon and Washington cases, but the typed-up charts of alleged infringement




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activities from their cases overlap in time with the alleged infringement activities

in the “Darren M. Griffin” cases. For example, Mr. Lamberson is alleged to have

been “observed infringing” at 04:39:20PM UTC on December 2, 2012. “Darren M.

Griffin” says that John Doe # 40 in the Eastern District of Tennessee is alleged to

have been observed infringing in the same swarm at 04:19:53PM UTC on

December 2, 2103. “Darren M. Griffin” says that John Doe # 82 in the District of

Colorado is alleged to have been observed infringing in the same swarm at

5:07:08PM UTC on that same Sunday December 2, 2102. Plaintiff’s witness

cannot change by federal district, because the data is generated first and then

divided into federal districts. This is why I asked Ms. VanderMay about Mr.

Griffin right at the beginning of my appearance in this case in October 2013. She

initially told me she would not inquire and then she told me she would inquire. I

never got an answer. I wanted to know if plaintiff was going to use a similar

declaration of Mr. Griffin to support its claims in this case. Ironically, the

declaration filed August 4, 2014, by Mr. Macek, ECF No. 88, is essentially

identical to Mr. Griffin’s Missouri Elf-Man declaration filed in March 2013. I

repeatedly asked Ms. VanderMay about Mr. Griffin in October and November

2013, as we proceeded toward our Rule 26(f) materials and the Conference itself

where I raised it again in my 26(f) written materials and over the telephone in the




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conference itself. ECF No. 14. At the Conference, Ms. VanderMay said she was

unaware who her witness was. When I originally filed these Motions, I used this

unawareness to demonstrate that Ms. VanderMay did not perform an objectively

reasonable investigation, since lawyers should understand the investigation upon

which a case it founded. Now that Mr. Griffin’s very existence has been challenged

and not confirmed, Ms. VanderMay’s failure to provide a direct answer to my

inquiries about him in October and November 2013 presents an entirely different

problem. Either she knew he did not exist, which I doubt, or plaintiff’s

representatives did not tell Ms. VanderMay the truth about Mr. Griffin. I was not

the first to start asking questions about “Darren M. Griffin” in late 2013. On

September 10, 2013, in BKGTH Productions LLC v. Does 1-20, Case No. 13-cv-

05310, ECF No. 4, Eastern District of Louisiana, the Court denied the plaintiff its

Motion to Expedite Discovery in a BitTorrent case, requiring the plaintiff to

provide clarification of the customary “Darren M. Griffin” declaration. The court

asked seven pointed questions about the “Darren M. Griffin” declaration, including

about Crystal Bay Corporation, the software used, its error propensities, and other

obvious questions borne from the technobabble of Mr. Griffin’s declaration

(virtually identical to Mr. Macek’s declaration.) Plaintiff’s counsel responded to

each of the seven inquiries, ECF No. 5, but did not submit a second declaration of




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“Darren M. Griffin” to do so. On September 30, 2013, the Court denied the Motion

for Expedited Discovery, finding the plaintiff’s counsel’s response inadequate on

the seven points. ECF No. 6. Subsequently, the plaintiff voluntarily withdrew its

case. ECF No. 8. This was probably a scary moment for Mr. Griffin’s handlers –

what to do when a Judge asks questions to a person who does not exist? And then a

month later some defense lawyer in Washington State is asking if Mr. Griffin is

going to be on Initial Disclosures? This is not part of the playbook. “Darren M.

Griffin” was filing declarations in a steady manner every month from June 2012,

through March and April 2013, with the Elf-Man declarations, through 2013 for

many different plaintiffs, until the “Darren M. Griffin” declarations stop being

filed in cases throughout the country without explanation in late November, 2013. I

started asking about Mr. Griffin by October 25, 2013, through our Rule 26(f)

conference preparations in November 2013, through and after our Rule 26(f)

conference December 2, 2013, up until plaintiff served its Initial Disclosures

December 16, 2013, naming Messrs. Patzer and Macek. At no point during this

time did Ms. VanderMay confirm or deny the existence of Mr. Griffin in response

to my inquiries about him and Crystal Bay Corporation. It never occurred to me at

that time that one reason Ms. VanderMay was not responding was that Mr. Griffin

did not exist and that plaintiff’s representatives were attempting to conceal that




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fact. It now occurs to me that the prospect of having to identify the obvious Elf-

Man “witness” “Darren M. Griffin” in Initial Disclosures was too much even for

plaintiff’s representatives or its counsel and the decision was made to switch to Mr.

Macek, the German national who likely does exist. Subsequently, Mr. Macek has

been providing the declarations for plaintiffs for whom Mr. Griffin has earlier

testified (e.g. this case, and TCYK, LLC.) Over 190 Declarations of a “Darren M.

Griffin” have been filed in multiple Districts on behalf of multiple BitTorrent

plaintiffs. Exhibit D. In each declaration, “Darren M. Griffin” claims a relationship

to Crystal Bay Corporation; we found three varieties: (i) “retained as a software

consultant by Crystal Bay Corporation in its technical department;” (ii) “Data

Supply Expert with the firm of Crystal Bay Corporation;” and (iii) “I work for

Crystal Bay Corporation with its principal address at 110 E. Center Street, Suite

2013, Madison, South Dakota 57042.” One exception to this is the District of

Colorado Elf-Man case where the “Darren M. Griffin” declaration claims he is a

consultant to Crystal Bay Corporation, but the Complaint claims the investigator

was IPP. If Mr. Griffin does exist and is German, many of his Declarations do not

comport with 28 U.S.C. § 1746. Full compliance cannot be determined, because

none of the declarations state where “Darren M. Griffin” resides or executed the

declaration. Additionally, the “Darren M. Griffin” signatures are not consistent.




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“Darren M. Griffin” signed only by initials. Numerous examples of Mr. Griffin’s

signatures, including one compared to Mr. Fieser’s signature are attached. Exhibit

E. I knew plaintiff’s representatives were trying to keep their operations

“invisible,” ECF No. 65-3 at p. 30, but I had not considered until this past month

that they may have fabricated a witness used in hundreds of federal lawsuits to

support ex parte Motions for Expedited Discovery. I still cannot think of any

advantage to this technique other than convenience in executing multiple

declarations prepared for American lawyers during American business hours. If

this is true, it is an astonishing breach of the federal rules by Elf-Man LLC and the

other plaintiffs’ using the Crystal Bay Corporation/IPP investigators. If Mr. Griffin

does exist, then plaintiff’s refusal to identify him was a breach of its obligations;

and if Mr. Griffin does not exist, then there is an entirely different problem. So,

yes, Mr. Lowe is correct that I endlessly pursued theories. One of those theories

was suspicion about the Elf-Man witness “Darren M. Griffin.”

63. Responding to paragraph 9, point 7: I did not accuse Ms.

VanderMay’s assistant of lying under oath. On the contrary, her testimony appears

truthful and proves that the May 22 Certificate of Service is incorrect. ECF No. 64.

64. Responding to paragraph 9, point 8: Our challenge to the admissibility

of the evidence is justified. RCW 18.165.010 et seq. establishes a comprehensive




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regulatory scheme for private investigators who are hired to detect or create

evidence and testify about it in Washington. Mr. Macek or Mr. Patzer claim

relationship to software designed precisely to “detect, discover, or reveal”

“evidence to be used in court” (RCW 18.165.010(12)) triggering the licensure (and

foreign temporary registration) requirements of RCW 18.165. Failure to comply

with these regulations is a crime. RCW 18.165.150. Plaintiff could have hired a

Washington investigator in real time to corroborate the data and be able to testify

about it. Additionally, Mr. Macek’s declaration is objectionable for the reasons

about IPP pending in Malibu Media v. John Doe, Case No. 14-cv-00223 in the

District of Maryland, ECF No. 8., Defendant’s Motion for Order to Show Cause as

to Why All Evidence and Data From Tobias Fieser and His Company IPP Should

Not Be Precluded and These Cases Dismissed. Oral argument was July 30, 2014;

no order has issued as of this date.

65. Responding to paragraph 9, point 10: I did serve a Rule 11 Motion to

former counsel on October 11, 2013, along with a full explanation of its basis,

including the use of materials. I admit it is not the form of Motion and Declarations

as filed here; however, former counsel was on notice of the reasons and basis for

our Rule 11 demands.




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66. Responding to paragraph 9, point 11: I never agreed to cancel the

30(b)(6) deposition, as discussed herein.

67. The bullet point examples in Mr. Lowe’s Declaration at paragraph 10,

of my alleged “dishonesty” demand clarification:

68. Responding to paragraph 10, point 1: I never agreed the deposition

was cancelled. Since plaintiff had resisted our offer regarding the depositions of

Mr. Macek and Patzer in Spokane, I figured the 30(b)(6) may be my only

opportunity to get any testimony from plaintiff as to the contentions of the

Complaint in order to assemble a summary judgment. I was hopeful Elf-Man LLC

would appear for the noted deposition, but I was not surprised when it did not.

69. Responding to paragraph 10, point 2: There is nothing dishonest about

my inquiry as to the Elf-Man copyright certificate. None of the Elf-Man cases

submits page 2 of the Certificate. I asked Mr. Lowe if he had it, and he admitted he

did not and that the client might not. He did reply that he had inquired from the

Copyright Office about page 2, and he told me what it purportedly contained. I told

him this was a satisfactory answer as seen in the exchange he includes. My point

was not that Elf-Man LLC had a questionable page 2 like Canal Street Films did,

my point was that none of the Elf-Man LLC counsel had made a submission of the

entire certificate to the Court, and, thus, Elf-Man LLC was not entitled to the




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benefit of any of the presumptions of ownership and authorship as the Copyright

Act provides at 17 U.S.C. § 410(d), affecting the equitable relief that it had

requested. So, yes, to this extent I made an issue of it.

70. In paragraph 12, Mr. Lowe claims that only minimal work would have

been necessary to defend. This would have been correct with reasonable plaintiff’s

counsel. My goal was to get plaintiff to realize its folly as soon as it could. My

strategy had two parts. Part one was to offer to make Mr. Lamberson and his

computer available for inspection so that plaintiff could confirm he did not infringe

nor know anyone who did. The goal of part one was to allow plaintiff to dismiss

the case before the Answer was filed and then not to pursue any costs or fees. Part

two of the strategy, if plaintiff rejected part one, was to Answer the Complaint and

then do everything to convince plaintiff that it had made a grave mistake, and that

correcting it by settling for fees sooner rather than later was in everyone’s best

interests. It is in my best interest and the best interest of my law firm that I be

engaged in matters at my customary hourly rate of $490 and not the $250 we

charged Mr. Lamberson or the $400 we request here. So I tried my best at every

point to convince plaintiff that its case was unwinnable against Mr. Lamberson. I

am concerned Elf-Man LLC never understood the implications of the decisions

made on its behalf to reject our offers to settle. I am not certain how I was




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supposed to obtain a dismissal in one-tenth the time as Mr. Lowe suggests,

although my client and I would be happier now if plaintiff we had. Is Mr. Lowe

suggesting that I should have known about the seven-step process earlier and that if

Mr. Lamberson did nothing, without otherwise using any of the Rules of Civil

Procedure, that eventually plaintiff would take step seven and dismiss the case as

long as Mr. Lamberson politely never offered to give plaintiff any money? But

even at 1/10th the defense, I would still have asked about Darren M. Griffin. If Mr.

Lowe is suggesting that I am slower than I should be at realizing that fellow federal

intellectual property practitioners might be utilizing witnesses who do not deny not

existing, then he is probably right. It took me nine months from my first suspicion

about “Darren M. Griffin” and Crystal Bay Corporation in October 2013, until the

filing of these Motions in July 2014, to garner enough evidence and nerve to

suggest that the Elf-Man LLC declarant about whom I have been inquiring is

fictitious. Next time I will be much quicker. Also, we have already provided

detailed descriptions and associated time for each month based on the format of the

bills we prepared and sent to Mr. Lamberson, taking into account time written

down. We can provide more detail if the Court desires. In order to confirm that we

have not billed for duplicate time, we also submit the Declarations of my




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associates, Jeffrey R. Smith and Rhett V. Barney, and each explains the

appropriate role I assigned them in the case.

71. As to Paragraph 13, we attach copies of the receipts for the deposition,

paper, and process server attached hereto as Exhibit F. The PACER fees are paid

for in a group for all of our firm’s matters, but the pages isolated for Mr.

Lamberson were 9,316 when this Motion was filed. We have searched

considerably more pages since the filing of these Motions, estimated at 1,000

pages, using the “820” copyright code, the 2012-2013 timeframe, and “Doe” as

party name and then searching docket sheets of likely non-pornography or horror

BitTorrent cases for additional Declarations of “Darren M. Griffin.” We found

scores of them.

REGARDING THE DECLARATION OF MS. VANDERMAY, ECF NO. 84.

72. In response to paragraphs 7 and 8 of Ms. VanderMay’s declaration,

Mr. Lamberson did not receive the correspondence, perhaps because it was not

addressed to his then-current residence. Mr. Lamberson’s declaration in this regard

is filed concurrently herewith.

73. In response to paragraph 9, Ms. VanderMay says she “negotiated

resolutions” with ISP subscribers, but obviously, she did not do so for Mr.

Lamberson.




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74. In response to paragraph 10, it is true that Ms. VanderMay offered to

have the software examined. The software is located in Germany and we were told

we would be required to pay for its examination. We have not yet had reason to

challenge that the software is capable of recording purported IP addresses of

participants with whom the investigator makes a technical connection. We had no

real interest in examining the technical software until we had a deposition of the

technical witnesses, which, of course plaintiff resisted. As it is, Mr. Patzer’s

Declaration, ECF No. 89, confirms our examination of the “evidence” – only

16,397 bytes were communicated – under 115 milliseconds. The software did not

need examination if this is all plaintiff has – the 21st century scintilla.

75. In response to paragraph 11, the subpoena to Vision Films was

necessary. Ms. VanderMay says: “In sum, there is absolutely no identifiable basis

relevant to this case for Defendant’s subpoena to Vision Films.” No basis? How

about Vision Films claiming in the Eastern District of Tennessee, Case No. 13-cv-

00128 that it is the owner of the exclusive rights to Elf-Man?

76. In response to paragraphs 13 and 14, Ms. VanderMay says she opted

not to examine Mr. Lamberson or his computer because she had a pending Count 3

that would have found Mr. Lamberson strictly liable for any infringement

regardless of his knowledge, participation, or involvement. Of course, there is no




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basis for this under the Copyright Act or the cases, and the Court granted a Fed. R.

Civ. P. 12(b)(6) Motion on this very point. For example, claimed direct

infringement (Count 1), a claim made without any investigation and a claim that

could be proven or disproven by the offered deposition and examination of the

computer. Mr. Lamberson answered written discovery that his one computer is his

one computer, identified by serial number, voluntarily protected from spoliation.

Ms. VanderMay made a selfish economic decision: it was not economic for her to

examine the evidence, but it would have been economic for Mr. Lamberson to

eliminate Counts 1 and 2 which then would have ended the case with the Court’s

ruling dismissing Claim 3. Elf-Man, LLC v. Charles Brown, et al, 13-cv-0115-

TOR, ECF No. 106.

77. In response to paragraph 15, Ms. VanderMay lays no foundation for

the typed-up chart. What is this chart? How was it prepared? By whom? The chart

is inadmissible, but the chart is also the result of obvious error that any person can

see. I confronted Ms. VanderMay about the chart and how it was “a hoot.” The

chart alleges downloading of thousands of works in a month, often over 100 GB

per day. The memory of Mr. Lamberson’s computer could not handle this and he

owns no external hard drive to store this onslaught of information, as his

Declaration states. Comcast does not allow residential customers to download over




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100 GB per day, because Comcast has a monthly traffic limit considerably lower

than this. Most importantly, the list has nothing in common with Mr. Lamberson –

he did not volitionally seek and copy works in Mandarin Chinese, Banku (Indian),

Dutch, Tagalog, Arabic, Russian, Japanese, Korean, German, Spanish, Italian, and

French, as the purported works on the list cover. Ms. VanderMay claims “Plaintiff

has no knowledge as to Defendant’s linguistic abilities, nor can one preclude the

possibility that the material was accessed solely for its visual content or a third

party,” but she could have inquired whether young Mr. Lamberson is fluent in 12

languages had she taken his deposition. Perhaps the most amusing aspect of this

typed-up chart: one of the entries allegedly copied was “Netherlands Top 40.”

Interestingly, the PCAP file provided in discovery appears to indicate that the

foreign computer that had the 13,697 byte exchange is located at “Longitude

4.9167E, Latitude 52.35N” a location that resolves to suburban Amsterdam,

Netherlands. Exhibit G. Mr. Lamberson has never listened to The Netherlands Top

40, but maybe plaintiff’s representatives’ investigator in Amsterdam has.

78. In response to paragraph 16, Ms. VanderMay is mistaken. Mr.

Lamberson fully complied with discovery. All of his answers were “straight.” He

was asked to identify every person that had entered his home over a period of time,




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and he did so, including identification of minors. His declaration confirms this. To

my knowledge, plaintiff’s counsel contacted none of these people.

79. In response to paragraph 17, it is true that discovery was not complete

when plaintiff moved to dismiss: Elf-Man LLC was facing two Motions to Compel

against it. ECF Nos. 42 and 57.

80. In response to paragraphs 18-20, Judge Lasnik’s quoted passages

speak for themselves. He was obviously concerned that Ms. VanderMay was

abusing the subpoena power to wrest settlements from innocent pro se parties. I

included these exchanges because they show that in the 197 days between the

filing of that case and Ms. VanderMay’s request for summonses, Ms. VanderMay

was busy negotiating, but not examining her own case or complying with the rules

of civil procedure. She declined to engage with me in a dialogue about the

substance of the matter, even after I had raised Rule 11 after Judge Lasnik had

raised Rule 11. Ms. VanderMay is correct that I did not include the passage where

Judge Lasnik referenced Ms. VanderMay’s declaration that she accepts money

only from guilty defendants. Plaintiff’s demand of $7,000 from Mr. Lamberson

without examining him or his machine contradicts Ms. VanderMay’s declaration

and representations to the Court. I raised the promises of this very Declaration as




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part of my Rule 11 package on October 11, 2013, reminding counsel of the

representations she had made that innocent people do not pay. ECF No. 80.

81. In response to paragraph 21, Ms. VanderMay does not deny that the

time for service had expired when Mr. Lamberson was served. I acknowledge that

Judge Rice later allowed this late service, but the point was to show recklessness in

serving process after the federal rules had extinguished the right to do so.

82. In response to paragraph 22, the alleged copyright certificate has

never been submitted to the Court. Consequently, plaintiff is not entitled to any of

the presumptions of 17 U.S.C. § 410(d).

83. In response to paragraph 23, Ms. VanderMay’s claims about “Darren

M. Griffin:” “To this day I have no information which would suggest that anyone

by this name played any role in the subject investigation.” This shows that Ms.

VanderMay has refused to examine facts which we have repeatedly brought to her

attention: Declarations were submitted by Elf-Man LLC by “Darren M. Griffin”

covering typed-up charts of alleged infringement of Elf-Man that overlap in time

with those submitted by Ms. VanderMay. I included these facts to show that Ms.

VanderMay was not aware of her investigator; this is a sign that there was not an

adequate pre-filing investigation. The fact that Mr. Macek submits a declaration




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without addressing Mr. Griffin’s testimony about the same events is puzzling,

especially when Mr. Griffin’s very existence has been challenged.

84. In response to paragraphs 24-26, Ms. VanderMay does not deny that

the requested documents were not timely produced or that these failures multiplied

the proceedings. The technical report was referenced in the Initial Disclosures,

without any notation that it did not yet exist.

85. In response to paragraphs 27 and 28, Ms. VanderMay again refuses to

acknowledge the implausibility of the description of the relationship of Elf-Man to

its investigators. Indeed, Mr. Macek’s Declaration makes the explanation even

more unlikely. Ms. VanderMay’s explanation was that Mr. Macek was “working

for” Crystal Bay Corporation on a monthly salary, but Mr. Macek says he is a

consultant. Mr. Fieser testifies that Mr. Macek works for IPP. The explanation

provided by Ms. VanderMay is obviously inaccurate and designed to retain the

anonymity of plaintiff’s representatives.

86. In response to paragraph 29, APMC is, in fact, a real party in interest:

Elf-Man LLC assigned rights to Vision Films. Vision Films hired APMC. The

APMC agreement with Vision Films, ECF No. 66 p. 19, makes clear that APMC

will hire counsel, manage the litigation, and is paid first from any proceeds. Id.

This makes it a real party in interest: AMPC is making the decisions and it is first




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to be paid. Some of these decisions have been to the detriment of Elf-Man LLC,

such as the events leading to these pending Motions.

87. In response to paragraph 30, Ms. VanderMay claims the Prezi

presentation has nothing to do with this case, but no witness from APMC testifies

as to this point. It appears the presentation is directly on point: it addresses APMC,

it addresses the back office services that Ms. VanderMay does not deny she

received from APMC, it addresses Mr. Macek as being in charge of Declarations,

it confirms APMC as a real party in interest.

88. In response to paragraph 31, plaintiff did not ask for a ruling on its

long-pending pending Rule 12 Motions.

89. In response to paragraph 32, Ms. VanderMay initially suggested I was

litigating with “unfettered aggression” and I assume I surprised her by agreeing. I

did so to make a point. I knew from day one, October 11, 2013, that Mr.

Lamberson would prevail – the only question is how long it would take plaintiff to

see the light. Because I was working on this case at a reduced rate, I had every

desire to end the case as soon as possible. My strategy, as I have testified, was (i)

allow deposition and inspection of Mr. Lamberson’s machine and accept dismissal

for no cost or fees, but (ii) if plaintiff refused, then I would remind plaintiff its case

was mistaken with every new ugly fact my law firm uncovered. Ms. VanderMay




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never once indicated she may have some problem with the case. She felt strongly

she would prevail at trial, although she was never able to tell me how. I tried my

best to get her to understand this would be impossible, since Mr. Lamberson could

not lose due to his innocence. I never blocked the path toward plaintiff’s

awakening on liability.

90. The Exhibit C Ms. VanderMay attaches to her Declaration, ECF No.

84, to show my admission of “unfettered aggression” shows a typical exchange

with her on a valid point about the case. The oldest message is at the end of the

string, pages 7 and 8. On April 18, I ask if she would consider making an offer to

settle the case rather than having to address the issue of deposition of the German

witnesses. I also informed her that I had discovered the APMC Prezi presentation

which had enlightened me to many of the issues plaintiff had been obfuscating.

She complained I was offending her. On April 21 (pages 3-6 of Exhibit C), I wrote

providing considerable detail about how the APMC Prezi presentation combined

with 12 other enumerated factors to make her case unwinnable. We served the

three APMC Requests for Production that are the subject of our Motion to Compel

on April 22, 2014. Our cover letter to that discovery is pages 2-3 of her Exhibit C.

She replied with more obfuscation on April 23 telling me that she would not

engage in a discussion about APMC. Finally, on page 1 is the letter from April 23




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where I agree with her term “unfettered aggression” in the context of a letter

explaining our utter frustration with her client’s representatives’ obfuscation and

demanding her client be presented our offer to settle.

91. In response to paragraphs 33 and 34, I have testified above regarding

the relevance of Vision Films. The BitTorrent link to Elf-Man for the very hash

number at issue in this case is still active. Exhibit A. Vision Film’s movie Blood

Money was also released into BitTorrent prior to its release, and is also the subject

of a BitTorrent lawsuit.

92. In response to paragraph 35, Ms. VanderMay claims she was the only

counsel on the case, but we have already testified that she filed identical copies of

pleadings prepared by others. ECF No. 81, p. 2-3. Indeed, counting Ms. Leland,

plaintiff and its counsel have had three counsel of record, one “non-appearing

counsel,” and lawyers behind the scenes at APMC. I am suspicious that APMC has

drafted substantive pleadings submitted in the case. My concern is, that according

to the Prezi presentation, ECF No. 65-3, this back office legal team is not licensed

to practice law in Washington or any U.S. state. Also, as I have testified, I did not

accuse Ms. VanderMay’s office personnel of lying under oath.

93. In response to paragraph 36, I did not agree not to file my Answer

until after the Conference with the Court – I agreed that she could include this




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suggestion in the paperwork. I gave Ms. VanderMay the ability to dismiss the case

for no costs or fees prior to answer and she had rejected the offer and asked us to

answer (making a mistake on Step 6.) As the Scheduling Conference drew near, I

decided to prepare and file the Answer so that I could raise the issues about the

German investigators in the Scheduling Conference, which I did. I also wanted the

Court to know about the Vision Films case in Tennessee, because it occurred to me

that plaintiff might confess to the Court at the Scheduling Conference that Elf-Man

LLC had no standing. I raised the point at the Conference, but plaintiff did not

address it.

94. In response to paragraph 37, the First Amended Answer is identical to

the original Answer other than removal of the Constitutional challenge to statutory

damages, discussed at the Scheduling Conference. The challenge remains

legitimate, but I decided to drop it for convenience, since I was confident statutory

damages would never be awarded. Likewise, I removed state law claims, but again

only for convenience – had the Court denied plaintiff’s esoteric Noerr-Pennington

antitrust immunity defense motion, I would renew these state law claims as I have

stated before.

95. In response to paragraph 38, I admit calling this a $10 case, the price I

paid for each of the two copies of Elf-Man that I bought. The low value of the case




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is why we used the two part strategy: (i) get plaintiff to dismiss for free, and then

(ii) get plaintiff to pay to dismiss as soon as it saw the light of its mistake. I am not

certain how I could have more effectively persuaded plaintiff it was wrong. Even

accusing a person of not existing in four places was not enough to draw a straight

response from plaintiff: “Yes, Mr. Griffin exists, here is his declaration,

identification and photograph” or “Yes, Mr. Lamberson is correct that Mr. Griffin

is fictitious. We used this name as a convenience so that anyone could sign the DG

initials to get the testimony on file.” Instead, we have six declarants, only one of

whom mentions Mr. Griffin, but without addressing his challenged existence.

96. In response to paragraph 39, Ms. VanderMay displays the

fundamental conceit of plaintiff and its representatives: the uploading of an

imperceptible blip by a foreign computer from an American router is not

“confirmed infringing activity.” It might be evidence that could be corroborated by

a witness who could testify, but the blip could never, by itself, with or without a

witness, support a judgment of infringement. Plaintiff’s representatives’ lawsuit

empire has survived despite this fundamental error. Maybe the exposure of a

fabricated witness will lead to the end of it.




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97. In response to paragraph 40, plaintiff’s withdrawal from two cases

citing unnamed plaintiff’s representatives, at the very least, indicates that people

other than Elf-Man LLC were making plaintiff’s decisions.

98. We request 35 hours for Mr. Lynch for work on the reply,

investigation, preparation of this Declaration, legal research, and examination of

the “Darren M. Griffin” declarations. We request for 3 hours for Mr. Barney, for

preparation of his declaration and Mr. Lamberson’s, as well as review of our

pleadings. We request 2 hours for Mr. Smith for review of the pleadings and his

declaration.

I declare under penalty of perjury under the laws of the United States that

the foregoing is true and correct.

DATED this 11th day of August, 2014.

LEE & HAYES, PLLC By: s/ J. Christopher Lynch

J. Christopher Lynch, WSBA #17462 Jeffrey R. Smith, WSBA #37460 Rhett V. Barney, WSBA #44764 601 W. Riverside Avenue, Suite 1400 Spokane, WA 99201 Phone: (509) 324-9256 Fax: (509) 323-8979 Emails: [email protected]

[email protected] [email protected]

Counsel for Defendant Ryan Lamberson REPLY DECLARATION OF J. CHRISTOPHER LYNCH IN SUPPORT OF DEFENDANT’S MOTION FOR ATTORNEYS’ FEES - 52



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CERTIFICATE OF SERVICE

I hereby certify that on the 11th day of August, 2014, I caused to be

electronically filed the foregoing with the Clerk of the Court using the CM/ECF

system which will send notification of such filing to the following:

David A. Lowe [email protected]

Collette C. Leland [email protected]

LEE & HAYES, PLLC

By: s/ J. Christopher Lynch

J. Christopher Lynch, WSBA #17462 601 W. Riverside Avenue, Suite 1400 Spokane, WA 99201 Phone: (509) 324-9256 Fax: (509) 323-8979 Email: [email protected]


