KLENEOENST PC 501 WEST 8aoAowAY, SUITE 600 SAN DIEGO, CALIFORNIA 92101 Case 2: ban.' ix) U.) --Ftm a r--Document 113 Filed 04/11/13 Page 1 of 15 Page ID #:2672 Heather L. Rosing, Bar No. 183986 David M. Majehrzak, Bar No. 220860 Philip W. Vineyard, Bar No. 233628 KLINEDINST PC 501 West Broadway, Suite 600 San Die o, California 92101 (619) 23 (619) 238-8707 hrosin @l>: DIEGO, CALIFORNIA 92101 'yjl Document 113 Filed 04/11/13 Page 7 of 15 Page ID #22678 disinterested as a public prosecutor who undertakes such a prosecution. Id. Thus, before the court asked Pietz to present evidence against Respondents, it should have evaluated the interests Pietz has in this case. B. The Respondents were entitled to a disinterested prosecutor, which Mr. Pietz assuredly was and is not I_n its February 7, 2013 order to show cause, the court invited Pietz, counsel for an unnamed putative Doe defendant, "to present evidence concerning the conduct outlined in this order."3 And, indeed, Pietz did provide that "evidence," including the examination of Witnesses, the video display of evidentiary and demonstrative exhibits, and the submission of multiple objectionable evidentiary exhibits into the recordfi The court thereafter invited Pietz to appear at the April 2, 2013, hearing at which the Respondents were also to appear.5 Although the proceedings lasted only an estimated 12 minutes, Pietz, without objection from the ourt, took his place with his co-counsel at the prosecutor's table, with several boxes of documents and the court's audio--visual equipment ready to levy against the Respondents. The court has provided Pietz great deference, both in granting him an opportunity to present evidence against the Respondents and in yielding great leeway to explore areas of inquiry far outside the scope of the court's orders. The court may not have expressly named Pietz as its prosecutor, but every one of the court's actions concerning Pietz implies such a position. has been appointed to him. The deference shown to Pietz and his unspoken role as prosecutor was and is a violation of the Respondents' due process rights. 3 February 7, 2013, osc (ECF 48), at 10:18-20. 4 The Res ondents had _no opportunity to object to the evidence because the court did not al ow their speciall appearin counsel, Heather Rosing, to participate in the evidentiary portion oft procee ings. 5 March 14, 2013, Order (ECF 88), 33:14-15. -3 .. OBJECTION TO THE REQUEST OF PUTATIVE JOHN DUE TO A BRIEF KLINEDINST PC 503. WEST ERQADWAY, Suite 600 SAN DEEGO, 92161 Case Document 113 Filed 04/11/13 Page 8 of 15 Page ID #22679 hwwfi 1. Pietz has a pecuniary interest in this case. Pietz's role is not as a representative of a current party in this case. Indeed, Pietz's client has yet to be named to an.y lawsuit. Rather, Pietz is using the court's invitation in the proceedings to advertise for new clients and to run up a bill that he hopes the court will pay Via sanctions imposed upon Brett Gibbs. a. Pietz advertises services that are intended to hinder prosecution of copyright infringement actions. Attached as Exhibit A to the concurrently filed Declaration of Philip W. Vineyard is a of the home page of Pietz's website, "pietzlawfirrn.coni." A simple review of the many links on the site associated with AF Holdings, 1 Ingenuity 13, LLC, and Prenda Law, as well as the many articles and blog posts 12 with titles such as Primer on Slaying the Copyright Troll," undermine any 13 argument that Pietz is disinterested in his prosecution of the Respondents. 14 or example, as to the litigation involving Ingenuity 13, Pietz has provided 15 the follewing on his website: 16 Ingenuity 13, LLC Prenda Law 17 This summer. Prenda Law. Inc. and its attorneys John Steele and Brett Gibbs have been busy filing lawsuits in California on 13 behalfoflngenuitv 13. LLC. Ingenuity 13 is the latest plaintiff 19 Prenda is using to orchestrate its national campaign to coerce com/'right "settlements" from ISP subscribers who may or may 20 not have actually downloaded any of plaintiffs movies. In a departure from prior practice. Prenda has been filing these 21 lawsuits against single John Does. That means these cases will 22 likely be harder to resolve because plaintiff will likely be seeking a higher settlement value (passing the cost on to the 23 defendant) and there is one less procedural problem with the case. However, clients in these cases still have options. If you 24 have received a letter fiom your ISP regarding an Ingenuity I3 subpoena, or if you have been contacted by an Ingenuity 13 25 representative directly, please contact The Pietz Law Firm. 26 27 These statements speak for themselves. Pietz. is manipulating legal 28 proceedings with Ingenuity l3, Prenda Law, John Steele, and Gibbs as 4 OBJECTION TO THE REQUEST OF PUTATIVE JOHN DOE TO FILE A BRIEF KLINEDINST PC 501 WEST Bsoaowm, SUITE 600 SAN DIEGO, CALIFORNIA 92101 Case Document 113 Filed 04/11/13 Page 9 of 15 Page ID #22680 1 advertisements for business, and the court has unknowingly advanced these efforts. ix) These facts certainly do not imply Pietz is a disinterested prosecutor. Rather, they scream just the opposite. In. Pietz is padding his bill with order to show cause In an earnest quest to be paid for his work, Pietz has filed a declaration in which he details his time and financial resources spent in this matter. Ind.eed, citing his overall and "big firm" experience (less than five and two years, respectively), Pietz somewhat incredibly makes an argument that his services are worth $550 per hour, but discloses that he is willing to settle for $300 per hourf' ll Pietz there-after provides a copy of his billing, which illustrates that he spent 120.5 12 hours doing legal work for, and paid $2,226.26 in expenses in, this matter. The 13 total invoice amounts to $38,376.26,7 all in defense of a client who had yet to be 14 named to any lawsuit. 15 But a more thorough analysis of Pietz's invoice shows that a super-maj ority 16 of his billing is spent on these order to show cause proceedings, which as noted in 17 Young, is an action between the public: and the Respondents. Young, supra, 481 18 U.S. at 804. Indeed, Pietz spent only 50.2 hours providing legal services before the 19 court's February 7, 2013, notice of the order to show cause against Gibbs; the 20 remainder (70.3 hours) was spent in response to the order to Show cause. Unless he 21 was acting as a prosecutor, Pietz has no basis to ask for these fees, but yet he filed 22 the declaration anyway. Permitting him to file another repetitive, conclusory brief 23 will serve only to increase the fees for which Pietz is asking remuneration, which 24 may benefit Pietz, but will furt_her violate Respondents' due process rights. 25 Another disclosure in Pietz's invoice raises significant due process concerns 27 6 Declaration of Morgan E. Pietz Re: Fees and Costs, filed on April 5, 2013 (ECF 102), atfl 8, 9, ll. 28 7 Decl. of Pietz, EX. D. 5 OBJECTIQN TO THE REQUEST OF PUTATIVE JOHN DOE TO FILE A REPLY KLINEDINST PC 50?. WEST BROADWAY, Some 600 SAN CALIFORNIA 9219}, Case Document 113 Filed 04/11/13 Page 10 of 15 Page ID #:2681 p:-h as well. Pietz advanced the costs for Alan Cooper, on whose testimony and declaration this court has heavily relied, to fly out to Los Angeles for the March 11, 2013.8 Pietz likewise and inexplicably advanced travel costs for Cooper's personal attorney, Paul Godfread. And Pietz failed to disclose these courtesies before examining Cooper. Moreover, Cooper was but one of seven individuals the court ordered to appear at the hearing. And Pietz has not indicated, nor can he, that he offered to advance travel costs for any of the other witnesses. If he was truly a disinterested prosecutor, then his obligation would be to do everything possible to provide the court with the information i_t needs to make its decision. By independently 1 1 selecting which of the individuals this court requested attend would be flown out, 12 Pietz demonstrated his actual bias. 13 Quite simply, Pietz's invoice dooms these proceedings. It shows that he has 14 an unmistakable bias and a pecuniary interest in the order to show cause 15 proceedings in violation of the Respondents' due process rights. 16 2. Pietz has a legal interest in the subject matter of the order 17 . to show cause. 18 As noted in the putative John Doe's Request for Leave to File a Reply, Pietz 19 argues that there is "an important issue in this case, with potentially far-reaching 20 implications that go beyond Prenda, which is in danger of being overshadowed by 21 the allegations of fraud and attorney rnisconduct."9 Pietz affirmatively states that 22 he had "hoped to further probe Prenda representatives on [sic] reasonableness of sin 23 the Wagar and Denton investigations and of the "snapshot" infringement theory. 2-4 And he concludes by noting that there is a "potential precedential importance of an 8 Decl. of Pietz, Ex. D, billing entry identified by date of February 20, 2013. 9 Request for Leave to File a Reply (ECF 111), 3:9--1 1. 28 15551., at 3:15-18. 5 .. OBJECTION TO THE REQUEST or PUTATIVE JOHN 901%: TO FILE A REPLY BRIEF KLINEDINST PC 501 WEST BROADWAY, Suite 600 SAN DIEGO, 92101 Case 2:1 Document 113 Filed 04/11/13 Page 11 of 15 Page ID #:2682 sell order on that issue. But this is not a hearing to determine if the tictitiously-narned-defendant model is a valid use of the court system for co_pyright infringement cases. Rather, this is a hearing about the conduct of Prenda Law and the other Respondents. This is a hearing to determine if the facts as developed by Peter Hansrneier and Gibbs, when coupled with the law cited in Duffy's, Van Den Hernel's, and Prenda's responsive brief, was sufficient to constitute what Justice Clarence Thomas called "probable cause" to file a lawsuit and avoid Rule 11 sanctions. See Prof'! Real Estate Investors 12. Columbia Pictures 508 U.S. 49, 65-66 (1993). Pietz wants to use the court's order to show cause to provide the proverbial haymaker to 1 1. future infringement actions, which necessarily must be commenced to obtain 12 subpoenas to determine infringer's identities, That is not disinterested. That is a 13 violation of the Respondents' due process rights. 14 C. The evidence Pietz proposes to offer is vague, inadmissible, and 15 incapable of satisfying the "beyond-a--reasonable-doubt" 16 standard. 17 1. The purported evidence against John Steele is inadmissible. 18 Pietz has stated in the putative John Doe's Request that there are two 19 documents allegedly drafted by "Steele's (prior) outside counsel" that will prove 20 that Steele has an ownership interest in AF Holdings." Pietz acknowledges that 21 the documents are hearsay, but argues that they fit into exceptions related to 22 judicial notice and admissions against interest. Pietz is wrong on both fronts. 23 First, judicial notice may only be taken of documents and facts that are "not 24 subject to reasonable dispute." FRE 201(b). The content of pleadings from other 25 courts do not qualify. Lee 12. County 0fL0s Angeles, 240 F.3d 754, 774 (9th Cir. 26 200l)(error under Rule 201 for court to take judicial notice of the truth of matters 3 ram, at 322.23. 28 Request for Leave to File a Reply (ECF 1 1 1), 229-26. .. 7 - OBJECTION TO THE REQUEST OF JOHN DOE TO FILE A REPLY BRIEF KLINEDINST PC 501 WEST BROAQWRY, Suite 500 SAN DIEGO, CALIFORNIA 92101 Case Document 113 Filed 04/11/13 Page 12 of 15 Page ID #:2683 asserted in extradition papers and in testimony at extradition hearing); see also 2 Wyatt v. Terhzme, 315 F.3d. 1108, 1114 n.5 (9th findings in one 3 case ordinarily are not admissible for their truth in another case through judicial 4 notice"); Wyatt v. Terhzme, 280 F.3d 1238, 1242 (9th Cir.2002)( "[T]aking judicial 5 notice of findings of fact from another case exceeds the limits of Rule 6 Newman 12. San Joaquin Delta Community College Dz'st., 272 F..R.D. 505, 515 7 (E.D. Cal. 2011) (court cannot take judicial notice of the truth of facts asserted in 8 court documents). To the extent the Court may disagree about the application of 9 this legal principle, FRE 201 and due process require the Court to allow 10 Respondents a hearing on this issue. 1 1 Otherwise, Pietz is attempting to submit out--of-court statements by someone 12 other than Steele as evidence of the truth of the matter asserted in the statement; 13 inadmissible hearsay". No hearsay exception applies to the two documents 14 proffered by Pietz. They are not, as Pietz alleges, nonhearsay party admissions, 15 and Pietz has not meet his burden to prove otherwise. See Bourjaily v. United 16 States, 483 U.S. 171, 175 (l987)(holding that proponent of hearsay must prove 17 exception or exemption by preponderance of the evidence). Even assuming 18 czrguerzdo Steele is a party to this action, FRE 801(d)(2)(A) would involve Steele's 19 own statements, which is not the case. See Durham v. County of Maui, 804 20 F.Sap_p.2d 1068, 1070 (D. Haw. 2011). FRE 801(d)(2)(B) requires proof that 21 Steele adopted the statements, which Pietz cannot present. Id, see also Seas-Laml 22 Service, Inc. V. Lozerz LLC, 285 F.3d 808, 821 (9th Cir. 2002). Similarly, 23 FRE 80l(d)(2)(C) requires proof of the Steele's authorization to make the 24 statements, which Pietz cannot proffer. Lastly, FRE 80l(d)(2)(D) requires proof of 25 26 _13 Nearly all of the purported evidence submitted by Pietz to date, besides beinfi 27 Eli' 19b e,Ci-1t,OIPUTATIVE JOHN DOE TO FILE A REPLY BRIEF KLINEDINST PC 501 WEST Baoaowmr, SUITE 600 San Dteeo, 92101 Case Document 113 Filed 04/11/13 Page 13 of 15 Page ID #:2684 1 the declarant's agency", which is similarly absent. US. v. Bonds, 608 F.3d 495, 504 Cir. 2010); Brenemarz, supra, 799 F.2d 470, 473 Cir. 1986). Importantly, the proffered statements themselves cannot themselves establish the declaranfs authority under subpart (C)the existence or scope of the agency under subpart (D). FRE 801(d)(2). See also Gomez 12. Rivera Rodrigzter, 344 F.3d 103, l06 (lst Cir. is hornbook law that an agency can_n_ot be proven solely by the unsupported statements of the claimed agent"); Mackey v. Burke, 751 F.2d 322, 326 n. 3 (10th Cir. l984)(An agency relationship must be shown to exist by independent evidence in order for Plaintiffs to establish nonhearsay exception); US. v. Portsmouth Paving Corp, 694 F.2d 312 (4th Cir. CD 1 1 1982)(Rule 80l(d)(2) "demands as a prerequisite to admissibility a showing based 12 on evidence independent of the alleged hearsay that the declarant is an agent of the 13 party with authority to speak on the subject"). Lastly, because this context is akin 14 to a criminal proceeding, independent evidence establishing that the agent was 15 engaged in a conspiracy with its principal is required. See Standard Oil Co. V. 16 Moore, 251 F.2d 188, 210 (9fi" Cir. 1957). Pietz has not provided such evidence. 17 2. The Berry declaration prevents proof beyond a reasonable l8 doubt 19 Pietz argues that the Berry declaration submitted to undermine Alan 20 Cooper's testimony is shameful and easily discredited." Yet, Pietz. has not offered 2l the court even a glimpse of the evidence to support this argument. If it is a 22 technical argument; e. "the texts are fake," arrangements are being made for a 23 computer forensics engineer to download, store, and maintain a chain of custody 24 for the text messages on Mr. Berry's phone.16 If Pietz intends to file a competing 25 declaration. questioning Berry's credibility, the effect is insufficient to create proof 26 14 Even evidence establishin a declarant's a enc for Prenda does not establish 27 agency for Steele. See In re onda, 2011 *3 (Br. ND. Cal. 2011). 28 15 Request for Leave to File a Reply (ECF 1 1), 3:4-6. 16 Declaration of Philip W. Vineyard, fl 9 OBJECTION TO THE REQUEST OF PUTATIVE JOHN DOE TO FILE A REPLY BRIEF PC 501 finoaowav, Suite 600 DIEGO, CALEFGRNIA 92191 Case Document 113 Filed 04/11/13 Page 14 of 15 Page ID #:2685 1 beyond a reasonable doubt that Cooper did not know about AF Holdings or that he 2 did not sign the disputed copyright assignments. At best, it raises a competing 3 credibility issue; between Cooper and Berry, but nothing that will permit the 4 court to reasonably rule that Pietz has presented evidence that, beyond a reasonable 5 doubt, proves that the Respondents were responsible for a forged assignment or 6 had an ownership interest in any of the plaintiff companies. As such, Pietz's 7 proffered evidence is superfluous to these proceedings. 8 3. Pietz had the opportunity to submit evidence on 9 H'ansmeier's and Gibbs' investigatory techniques and failed 10 to do so. 1 1 Pietz seeks to submit a declaration of a purported unnamed IT expert to 12 rebut unknown portions of the Respondents' briefs. Again, with the burden upon 13 him to justify the court's grant of leave to file a reply, Pietz fails to supply the 14 following information: the expert's credentials, the subject matter of his 15 declaration, and how that declaration will in any way remove any reasonable doubt 16 that the Respondents should be sanctioned for the allegations in the court's orders 17 to show cause. See, rag, Xiong v. Veneman, 2005 US. Dist. LEXIS 35843 at 18 20 (ED. Cal. 2005) (discussing burdens of proof for dispositive motions). 19 If the expert is to opine on the Rule 1 1 subject matter addressed in the 20 Declaration of Joshua Chin, the question must be why Pietz did not offer that 21 evidence during his on March .11, 2013. He had ample notice that this 22 topic was the subject of the court's February 7, 2013 hearing and plenty of time at 23 the hearing to explore the topic. But he chose to argue technical aspects on his 24 own. Only when his lay opinions and speculative conclusions - which have been 25 argued ad nauseam throughout the country - were challenged by someone with 26 actual technical knowledge and credentials did he determine that he was in need of 27 an expert. That ship has sailed. He had his chance. See Id. 28 Any further opportunities provided to Pietz to brief and present new material -10- OBJECTION TO THE REQUEST OF PUTATIVE JOHN DOE To FILE A REPLY 2: KLINEDINST PC 301 West BROADWAY, SUITE 600 Case Document 113 Filed 04/11/13 Page 15 of 15 Page ID #:2686 1 after he has already (1) filed three briefs and 36 exhibits, (2) participated in one 2 proceeding in which he presented numerous witnesses, 18 new exhibits, and his 3 legal arguments and (3) then participated in a second proceeding where he offered 4 no witnesses, no exhibits, and no arguments will only highlight fiarther the flawed 5 order to cause procedures thus far on display. Worse yet, it will necessitate 6 further roceedin s, likely includin additional briefin by the Res ondents, and a 8 7 further consumption of this court's resources. 8 CONCLUSION 9 The law is clear. The court is engaged in the prosecution of criminal 10 allegations against the Respondents. When the opportunity came to impose 2 1 1 punitive sanctions for litigation conduct that the court finds objectionable, it relied 12 on Pietz, who has spent more than half of his 4 year career fighting the L: 13 Respondents, to act on the court's behalf. Through this, Pietz is, in reality, simply L9 :13 14 working to advance his career and financial goals, while the Respondent's due 15 process rights are trampled. The court has sufficient information to determine 16 whether sanctions should be issued against a number of individuals and entities. 17 The record need not be further expanded to include additional, superfluous 18 material that should not impact the court's decision, but will certainly cause further 19 delay. As such, Paul Duffy, Angela Van Den Hemel, and Prenda Law Inc. request 20 the court deny Pietz's request for further briefing. 21 Should the court allow Pietz to file an additional brief, then Duffy, Van Den 22 Hernel, and Prenda request that they be afforded 10 days to file a reply. 23 Klinedinst PC 24 DATED: Anril 1 1. 2013 By: 25 Heather L. Rosing David M. Ma] chrzak 26 Philip W. Vine ard . Attorne for for 27 i55'2'33'" PAUL UP ANG VAN EN 28 HEMEL and PRENDA LAW. INC. 11 OBJECTION so THE REQUEST OF PUTATKVE JOHN DOE To A REPLY BRIEF