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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION
HONORABLE OTIS D. WRIGHT
UNITED STATES DISTRICT JUDGE PRESIDING
Ingenuity 13 LLC, PLAINTIFF, vs. NO. CV 12-8333 ODW
John Doe, et al., DEFENDANT,
Kee Re Re Re Re
REPORTER'S TRANSCRIPT OF PROCEEDINGS LOS ANGELES, CALIFORNIA
MONDAY, MARCH 11, 2013
fe aa
KATIE E. THIBODEAUX, CSR 9858 U.S. Official Court Reporter 312 North Spring Street, #436 Los Angeles, California 90012
COPY
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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1 APPEARANCES OF COUNSEL:
3 FOR RESPONDENT GIBBS:
4 WAXLER CARNER BRODSKY LLP BY: ANDREW J. WAXLER
5 -and- BARRY BRODSKY 1960 E. Grand Avenue
6 Suite 1210 El Segundo, CA 90245
9 FOR DEFENDANT:
10 THE PIETZ LAW FIRM BY: MORGAN E. PIETZ 11 3770 Highland Avenue
Suite 206 12 Manhattan Beach, CA 90266
13 -and-
14 NICHOLAS RANALLO LAW OFFICES BY: NICHOLAS R. RANALLO
L5 371 Dogwood Way
Boulder Creek, CA 95006
18 SPECIALLY APPEARING:
19 KLINEDINST LAW OFFICES BY: HEATHER ROSING
20 501 W. Broadway Suite 600
21 San Diego, CA 92101
22
23
24
25
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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3 WITNESS NAME
4 Alan Cooper Direct Examination by the Court 5 Direct Examination by Mr. Pietz Cross-Examination by Mr. Brodsky
6 Bart Huffman 7 Direct Examination by Mr. Pietz 8 Benjamin Fox Direct Examination by Mr. Pietz 9 Jessie Nason 10 Direct Examination by Mr. Pietz 11 Brad Gibbs Direct Examination by Mr. Waxler
12 Cross-Examination by Mr. Pietz
14 .D. IN EVID.
15 37 37
15,16,17,18
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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1 LOS ANGELES, CALIFORNIA; MONDAY, MARCH 11, 2013 2
3
4
a
6 THE CLERK: Calling Item No. 4, CV 12-8333-ODNW,
7 CV 12-6662, ODW, CV 12-6668, Ingenuity 13 LLC versus John 8 Doe, additionally, CV 12-6636 ODW, CV 12-6669, AF
) Holdings LLC versus John Doe. 10 Counsel, please state your appearances.
11 MR. WAXLER: Andrew Waxler, your Honor, and Barry
12 Brodsky for Mr. Gibbs who is present in the courtroom.
13 Thank you.
14 THE COURT: Good afternoon, counsel.
15 MR. PIETZ: Good afternoon, your Honor. Morgan 16 Pietz, P-I-E-T-Z, for the putative John Doe defendant in 17 12-CV-8333.
18 | MR. RANALLO: Nicholas Ranallo, co-counsel for the 19 same Doe.
20 THE COURT: All right. Gentlemen, thank you.
21 All right. We are here in response to an OSC 22 set by this court as to why sanctions should not be
23 imposed for various violations including Rule 11 and
24 Local Rule 83-3.
25 I have received from Mr. Waxler on behalf of
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1 Mr. Gibbs his response, supplemental response, a number
2 of documents. Spent the weekend reading a depo which was 3 perhaps the most informative thing I have read in this
4 litigation so far primarily because of what you didn't
5 want revealed. So, in any event, I have extended an
6 offer to all of the principles concerned to offer them an 7 opportunity to explain.
8 It is my understanding that they have declined 9 that invitation. Therefore -- 10 MS. ROSING: Your Honor? 11 COURT: And you are? 12 - ROSING: If I may approach.
13 COURT: Please.
14 MS. ROSING: My name is Heather Rosing, and I
15 filed an ex parte application with this court.
16 THE COURT: When?
17 MS. ROSING: Friday?
18 COURT: When?
19 MS. ROSING: It was filed I believe at 3:54 p.m.? 20 THE COURT: Guaranteed for the court to actually 21 | see it; right? Was it electronically filed?
22 MS. ROSING: The local rule says we're not
23 allowed --
24 THE COURT: Answer my question. Was it
25 electronically filed?
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1 MS. ROSING: No. Because we are not allowed to,
2 your Honor.
3 THE COURT: Okay. So what you did is you took it 4 downstairs to the intake window? |
5 MS. ROSING: Yes, your Honor?
6 THE COURT: Late Friday afternoon addressing a
7 matter that is set for hearing on Monday morning?
8 MS. ROSING: My clients received notice of this on 9 Thursday, your Honor. We received notice on Thursday? 10 THE COURT: I am just asking you a question. You
11 can answer it "yes" or "NO « 12 MS. ROSING: I'm sorry. Could you repeat the
13 question.
14 THE COURT: What is -- why are you here?
15 MS. ROSING: Again, my name is Heather Rosing with 16 the Klinedinst PC law firm. I am specially appearing for 17 four of those people that received this notice on
18 Thursday, Angela Van Den Hemel, a paralegal at Prenda
19 aay =<
20 THE COURT: Is this the long way of saying they
21 are not going to be here?
22 MS. ROSING: I'm sorry. I was just telling you
23 who I represent, your Honor?
24 THE COURT: Are they here?
25 , MS. ROSING: No, your Honor.
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THE COURT: Have a seat.
MS. ROSING: May I just finish?
THE COURT: Have a seat. Bottom line is the court is going to end up
drawing its own inferences from the information it
actually has.
An opportunity to be heard is all that is
required. If you don't wish to exercise that, fine.
There was so much obstruction during the course of this deposition that it is obvious that someone has an awful lot to hide. This has actually raised far more: questions of pau than the court originally had, but we will get to that later.
Initially, I have got a number of questions
regarding some of the filings that have been made with
the court.
I guess, Mr. Waxler, I guess you will be the
one that is addressing some of these things. One of my
questions is this. Why is it that in every single one of
these cases there is a form attached to the complaint
that asks for whether or not there are any related cases.
I have got a partial list of all of these cases that have
been filed in the Central District. None of them have indicated that there are any related cases.
Could you tell me why?
MR. WAXLER: Well, your Honor, the downloads are
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done by separate infringers, and the plaintiffs, yes, obviously, were a lot the same, and I believe that the
decision had been made that it didn't require the related
‘
case filings to be made. THE COURT: Okay. MR. WAXLER: Perhaps that was in error, your
Honor, as we sit here today.
THE COURT: Let me ask a question then. Let's
just say on one date, that date being July 2nd of 2012, four lawsuits were filed by AF Holdings LLC versus John
Doe all seeking a remedy for the infringement of the same
movie Popular Demand.
Now, can you tell me how on earth these aren't related?
-MR. WAXLER: Well, they are obviously related in
the sense that --
THE COURT: That is what I thought, too. And that is what this entire list is. Okay. They are all related, but that box was always checked no. And bnen we are going to get to something separate in a minute, and that is the issue of who has an interest, a financial
interest in the outcome of these cases. We will look at
this shortly. There is the issue of the court having vacated
and quashed the subpoenas that were served on various
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ISP's, and, then, of course, I have gotten other
responses to the OSC saying, well, we didn't know that
that meant we couldn't do other forms. of discovery. And,
by the way, we sent out a copy of the court's order to the various ISP's letting them know that the court had withdrawn those orders and surely that is not the conduct of someone who was trying to disobey the court's order. And I had to agree. Sounded reasonable.
Have you all seen the declaration of Sean
Moriarty from Verizon?
MR. WAXLER: Your Honor, we saw it this morning,
THE COURT: Okay. Good. And what say you because he responds directly to Mr. Gibbs' assertion that the ISP's were given notice
not to respond to the subpoenas. He says this didn't
happen, that they didn't receive notice.
MR. WAXLER: May I respond to that, your Honor?
THE COURT:
Sure.
MR. WAXLER: Mr. Gibbs -- Prenda Law is one of
the, is one of the e-mail addresses that received a copy of your October 19th, 2012 order. As does Mr. Gibbs. Mr. Gibbs had a conversation with Mr. Hansmeier and told
him that he thought that this order should be served on
the ISP's. Mr. Hansmeier advised Mr. Gibbs that that
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1 would be done. Mr. Hansmeier later advised Mr. Gibbs
2 that his request had been taken care of.
3 Now, if you read page, Paragraph 4 at Line 18 4 | and 19 of the declaration, all it says is based on the
5 Verizon records, it does not appear that Verizon received 6 from AF Holdings or its counsel a copy of the order. It 7 does not say they did not. And Verizon, like these other 8 ISP's, has a history of, as I understand it, eliminating 9 its records from their systems soon after, like within 30 10 days. CT Corporation receives the subpoenas. That was 11 who was supposed to be served, and they have a history of 12 not keeping them in their records for very long.
13 THE COURT: So they eliminate their documents
14 pretty much the way Mr. Gibbs eliminates the original
15 signed application from Alan Cooper?
16 MR. WAXLER: Mr. Gibbs never had the original
17 Signed verification from Mr. Cooper. Mr. Gibbs was told 18 by Prenda Law that they had it. So Mr. Gibbs was never 19 in possession of that document, and Mr. Gibbs did not
20 lose that document, your Honor.
21 THE COURT: One other thing you didn't really make 22 clear, was it only that document or was the entire file 23 lost?
24 MR. WAXLER: I don't know the answer to that.
25 THE COURT: Okay. So here is the deal. So what
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1 we have got, we have got CT Systems destroying the order
2 and the cover letter or transmittal of that order to
3 Verizon; right? But they have got everything else. They 4 have got all the other letters and the subpoena and all 5 that sort of thing. So the only thing they have gotten 6 rid of it just the order quashing the subpoena; right? 7 MR. WAXLER: No, your Honor. CT Corporation is 8 the agent for service of process.
9 THE COURT: I know who they are. 10 MR. WAXLER: CT Corporation may have received
11 that, and I am just saying their history is they don't 12 keep records for very long of having received subpoenas
13 or service of those. The other documents which are
14 attached to this declaration -- I believe since it was
15 given to me about an hour, actually 15 minutes ago out
16 there; I saw part of it online -- are documents that were 17 exchanged between Verizon directly and others. So they 18 weren't going through CT Corporation. So that is the
19 difference, your Honor.
20 THE COURT: You are saying, then, that the notice 21 to Verizon that that subpoena had been quashed by the
22 court went to CT and not to Verizon?
23 MR. WAXLER: That is their agent for service of
24 process. That is who they served. That is who
25 Mr. Gibbs, when he talked to Mr. Hansmeier, said please
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1 serve this order on them, and that is what Mr. Gibbs
2 understands was done.
3 THE COURT: Okay. Was. the order served in the
4 same way that the subpoena was served?
5 MR. WAXLER: That would be our understanding. I 6 mean, it was served on CT Corporation. That is how the 7 subpoena was served on CT Corporation.
8 THE COURT: So the subpoena and all the various 9 letters, et cetera, that emanated from Prenda Law to
10 Verizon were served on CF Systems; right?
11 MR. WAXLER: No. As I understand it, your Honor, 12 the e-mails that may appear here were exchanged between
13 Verizon directly, once they got the subpoena, and members
14 of Prenda Law. The only thing that would have gone
15 through CT Corporation was the service of the original 16 subpoena and a copy of the order.
17 THE COURT: All right. I am only going by the
18 declaration of Mr. Moriarty. This is under tab, Exhibit 19 A. The letter, Prenda Law, see that, September 5th? It 20 Says via hand delivery.
21 MR. WAXLER: I see that.
22 THE COURT: All right. Enclosed please find a
23 subpoena and attachment. So I am assuming that the
24 subpoena was also hand delivered. It doesn't say to
25 whom. Is this to CT?
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1 MR. WAXLER: That is our understanding, your
3 THE COURT: So what we have is a situation or at
4 least you are guessing, you are guessing that everything 5 seeking information from Verizon arrived intact, but the 6 order withdrawing or quashing that subpoena somehow got
7 misplaced.
8 MR. WAXLER: There is no evidence before this
9 court that Verizon did not receive that subpoena, that 10 order from this court. I can tell you that Mr. Gibbs'
1d intent was that that order be served so that they did
12 receive it. And it was always his understanding until he
13 saw the declarations in the filings by Mr. Pietz that
14 some of the ISP's did not receive a copy of that order. 15 THE COURT: It is also my understanding that I
16 guess a paralegal in the employ of one of these law firms ey began following up with these Internet service providers 18 inquiring as to why certain information had not been
AS provided pursuant to those subpoenas.
20 MR. WAXLER: And Mr. Gibbs read that for the first 21 time when the declarations were submitted in connection 22 7] with this OSC see was very surprised by it because he
23 understood, as he does today, that the order by this
24 court was setved on CT Corporation and then would have
25 been transmitted to Verizon.
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14
THE COURT: Okay. All right. There is a number
of things, Mr. Waxler, which you state in your papers
that I wanted to ask you about. . In more than one place, you indicate that Ingenuity 13 LLC and AF Holdings, et
cetera, have assets which consist of without limitation
their intellectual property rights in some of these
films. What other assets?
MR. WAXLER: AF Holdings and Ingenuity -- AF
Holdings, at least,
received the assignment. So they
have those property rights, and the companies would have
obviously the right to, or rather the settlement funds
that were paid on some of these matters would have been property of those companies. But as I understand it from Mr. Hansmeier's deposition which I, too, read over the weekend, that the trust accounts of some of the lawyers were holding those
settlement funds. Whether those settlement funds ever
made it to AF Holdings or Ingenuity 13, all I can do,
your Honor, is rely on what Mr. Hansmeier says because we
have no independent knowledge of it and nor does
Mr. Gibbs. Mr. Gibbs did not receive those funds. Those
funds were sent to Prenda Law.
THE COURT: So you are telling me what you know is
what you gleaned from this this weekend pretty much as
the court did; right?
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1 MR. WAXLER: Well, I mean, Mr. Gibbs may have more
2 knowledge than specifically what Mr. Hansmeier said.
3 THE COURT: Oh. Mr. Hansmeier has no knowledge of 4 anything. So I just want to know if you got what the
5 court got which is the only entities which apparently
6 make any claim whatsoever to these settlement funds are 7 the law firms. There appears to be no effort whatsoever 8 of transmitting any of these funds to the so-called
9 clients, Ingenuity 13 and AF Holdings, who don't file 10 income taxes anywhere because as Mr. Hansmeier says they 11 have no income. 12 Is that what you got? That is what I got.
13 MR. WAXLER: I thought that Mr. Hansmeier said
14 they didn't file income taxes because they were not 15 required in where they were domiciled, but you may be 16 right and I may be wrong. 17 THE COURT: No. He quite clearly said they have 18 not filed income taxes anywhere. 19 MR. WAXLER: I understand that. I just thought it 20 was a different reason for not filing them. a THE COURT: Well, probably because they don't do 22 anything, do they?
23 MR. WAXLER: Well, they in hearing from Mr -- in 24 reading from what Mr. Hansmeier says, they obviously own
25 valid copyrights, and those entities retain law firms
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1 like Prenda Law, apparently, to file actions such as the
2 ones that are at issue today.
3 THE COURT: They retain firms? Seriously?
4 You can hardly keep a straight face, can you? 5 MR. WAXLER: No, your Honor.
6 THE COURT: These entities were basically created 7 by these lawyers; right? They have no business. They
8 have no employees. They have no function really. They 9 are not even really a shell, are they?
10 MR. WAXLER: I don't know, your Honor.
LL THE COURT: The law firms are basically
12 prosecuting these actions on their own behalf, aren't
13. | they?
14 MR. WAXLER: Mr. Gibbs never had any client 15 contact with those clients. Mr. Gibbs received
16 information from Mr. Hansmeier and Mr. Steele, and
17 individuals advised Mr. Gibbs that they had talked 18 clients. |
19 THE COURT: Hansmeier and Steele, are those 20 individuals to whom you refer in your papers to as 21 senior partners in the law firm.
22 MR. WAXLER: Yes, they are.
23 THE COURT: I have another question. Does
24 Mr. Gibbs have an indemnity or hold harmless agreement
25 from these senior partners? Or is he out there on his-
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2 MR. WAXLER: He has no hold harmless agreement
3 from these partners that I am aware of.
4 THE COURT: Okay. All right.
5 MR. WAXLER: He was an of counsel, W -- 1099,
6 independent contractor for Prenda Law.
7 THE COURT: All right. Now, the court is coming 8 to the conclusion, and this is why it has been wonderful 9 to have someone here to disabuse me of the notion that 10 all of these lawsuits are being prosecuted on behalf of 11 the lawyers, that all of the settlement funds inure 12 solely to the benefit of the lawyers because not dime
13 one has been transmitted to AF Holdings or to Ingenuity
14 U3
15 Now, if there is information to rebut that, I 16 vous love to hear it. But, otherwise, that is what I am 17 stuck with. So now I am wondering why is it that no
18 disclosure has been made in this court and probably in
19 none of the federal courts that the lawyers have a
20 pecuniary interest in the outcome of these cases?
21 MR. WAXLER: I don't believe that that is what
22 Mr. Gibbs understands the case to be. The fact that the 23 settlement funds were not transmitted as of yet to those 24 entities doesn't mean those settlement funds aren't being
25 held in trust for those entities. Mr. Gibbs has no
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dh information whatsoever, your Honor, to understand
2 anything different than what I just described.
3 MR. BRODSKY: Your Honor, may I interject one 4 point?
5 THE COURT: Sure. Your name again?
6 MR. BRODSKY: Barry Brodsky.
7 THE COURT: All right. Go ahead, sir.
8 | MR. BRODSKY: My understanding and it is only from
9 reading the same deposition transcript was that those 10 funds remained in the trust accounts of the various law 11 firms that were representing the companies to defray 12 future expenses.
13 THE COURT: And what were those expenses other
14 than filing fees?
15 MR. BRODSKY: I would assume they would be filing 16 fees, investigative fees, you know, basically that.
, THE COURT: To -- okay.
18 MR. BRODSKY: But that is just my reading of the
19 deposition.
20 THE COURT: Okay. And after that is done, then 21 22 MR. BRODSKY: Apparently -- well, we don't know
23 where that trail ends, whether that trail has ended. But 24 we do know this. .We know that none of those funds
25 reached Mr. Gibbs.
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1 THE COURT: And we also know none of those funds
2 reached Ingenuity 13 and AF Holdings. 3 MR. BRODSKY: Apparently, from Mr. Hansmeier's j testimony, that is correct. 5 THE COURT: Who was the corporate designee, the 6 30(b) (6) designee for AF Holdings; right? 7 MR. BRODSKY: Yes. 8 THE COURT: And none of those funds ever reached 9 AF Holdings. 10 MR. BRODSKY: According to him, that's correct. 11 THE COURT: All these lawsuits settled on behalf 12 of AF Holdings; right? But they reside in the law firm's
13 trust account.
14 MR. BRODSKY: Some obviously were settled, yes.
15 THE COURT: You know what was really interesting, 16 a lawsuit handled by law firm A, the settlement funds
17 then are transmitted to law firm B's trust account, law 18 firm B being controlled by Mr. Steele. I don't know. I 19 just find these things curious.
20 All right. Any other light to be shed on some 21 of the court's concerns with respect to this foolishness 22 here because -- by the way, is there a Mr. Cooper. here? 23 MR. PIETZ: Your Honor, Mr. Cooper is in
24 attendance today, and I believe prepared to confirm that
25 these documents are founded on forgeries.
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1 THE COURT: Is there an Alan Cooper in the
2 courtroom? Don't be shy. Come forward, sir.
3 , (The witness was sworn.)
4 THE CLERK: Thank you. Have a seat.
5 THE COURT: By the way, while we are on the
6 subject, is there a Mark Lutz in the courtroom as well? 7 Is either Hansmeier in the courtroom?
8 MS. ROSING: Your Honor, I am the attorney
9 specially appearing for them and if I could finish my
10 request?
11 THE COURT: I just want to know if they are here.
12 MS. ROSING: They are not physically here, your
14 COURT: Thank you. Good.
15 MR. PIETZ: Your Honor, my understanding was that 16 Ms. Rosing was representing one of the Hansmeiers. Is
17 that different, or are you also representing Peter
18 Hansmeier?
19 MS. ROSING: I did not have an opportunity to say, 20 but I do not represent Peter Hansmeier.
21 THE COURT: TI didn't think you would be. The
22 technician? I didn't think you would be.
23 MR. WAXLER: Your Honor, while those individuals 24 are not present, my understanding is they are available
25 by phone.
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1 THE COURT: Is that right. Okay. I may take them
2 up on that. Maybe. Anyway.
4 DIRECT EXAMINATION 5 BY THE COURT: 6 Mr. Cooper, your name is Alan Cooper? 7 Yes, sir. 8 And where do you reside, sir? 9 Isle, Minnesota. 10 Isle, Minnesota. Do you have any connection ~- let 11 me just ask you specifically, do you have any connection 12 with Mr. Gibbs?
13 No, sir.
14 Ever met Mr. Gibbs before?
15 No.
16 . What about Paul Hansmeier, any connection with him? 17 No.
18 Ever meet him before?
19 No.
20 What about John Steele?
21 Yes.
22 What was your connection with Mr. Steele?
23 | I was a caretaker for a piece of property that he 24 had in Northern Minnesota.
25 QO And when was this?
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1 I think from 2006 till last August.
2 You worked for him from 2006 until August of 2012? 3 A No, I did not work for him. I was a caretaker for 4 his piece of property. He had two houses. I lived in
5 one and then took care of everything else there.
6 Okay. And he paid you?
7 No.
8 hie gata you?
9 There was no pay. It was I lived in the one house, 10 took care of everything on the property for free. 11 Or in exchange for a place to live?
12 Yes.
13 Q All right. So you didn't have to pay for your
14 housing; correct?
La A Correct.
16 Q So in exchange for housing on the property, you
17 took care of his property?
18 Yes.
19 And this was a deal you negotiated with Mr. Steele? 20 Yes.
21 All right.
22 It is in a lease agreement that we have.
23 All right. I guess you have been advised. Matter 24 of fact, I have seen a letter written by an attorney who
25 apparently is acting on your behalf where you have become
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1 concerned that your name is being used as a corporate
2 representative of some West Indian entities that you know 3 nothing about; is that true?
4 A Yes. That's correct.
5 Q I want you to explain. I want you to elaborate.
6 What is it that you have heard?
7 A That my name is being signed and forged and used
8 for whatever these offices or myself personally scams_
9 that they have going on. 10 Q Did you ever have a discussion with Mr. Steele
11 about these concerns of yours?
12 A He had, on one of his trips up to the cabin, all he
13 had said was if anybody contacts you about any of my law
14 firm or anything that has to do with me, don't answer and 15 call me.
16 Q Had he ever given you any advance notice that he
17 was contemplating embarking on -- let me back up. Do you 18 know what his legal specu was, say, back in 2006?
19 What kind of law was he practicing?
20 A When I had first met him, he was still in law
21 school.
22 Q In law school. All right. And, then, what area of 23 wna cevids did he go into if you know?
24 A _ He had originally said divorce, family law.
25 Q Family law. All right. Did he ever indicate to
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1 you that he was contemplating embarking on a different
2 specialty in the law?
3 A
4 Q And best as you can recall, what was this new
5 specialty?
6 A Internet porn buyers. I don't know exactly how to 7 word it for you.
8 Q Oh. Internet porn piracy sounds pretty good. All 9 right.
10 Do you recall anything he said about that?
13. A. As far as?
12 Q Anything about this new venture, this new method of
13 practicing law.
14 A I tried not to talk to him very much, but what he 15 had -- what he had said on one of his trips was his goal 16 | was $10,000 a day, to have a mailing of these letters.
17 Q What letters?
18 A To people that illegally downloaded on the
19 | Internet.
20 Q Did he explain what these letters would say and who 21 these letters would be sent to?
22 A I am not very Internet savvy myself, so it would be 23 whoever downloaded something that they weren't paying for
24 or illegal. I don't know exactly how this works. That
25 he would just send out a letter stating that if they
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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1 didn't send a check for a certain amount, that he would
2 make it public to these people's family and friends what 3 they were looking at.
4 Q I see. Okay. Is that all you can remember him
5 saying about this new venture?
6 A At this time. Yes.
7 Q All right. Now, let's put this in context. He
8 basically told you that if you started getting any
9 inquiry, that you were to, what, call him or direct the
10 callers to him?
11 A To contact personally, personally contact him.
12 Q Okay. Now, back up.. If you received any calls or
13 inquiries regarding what?
14 A He said anything that seemed out of place.
15 Q And you took that to mean what?
16 A I took that to mean the very next day I went and
17 talked to my father-in-law which is a retired sheriff and 18 talked to him, and he said until anybody contacts you, he 19 | goes we have nothing to go to the court system with.
20 And did that change?
21 I never heard anything from anybody.
22 All right. So no one ever contacted you?
23 No.
24 And so what is it 'that made you go off and hie
25 . Paul Godfread?
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1 A I had received a text asking if this was my
2 signature on a particular document, and I said no. And 3 that is when I was given a number to call an attorney to 4 make sure that this didn't come back towards me. 5 Q All right. I am going to assume that that copy of 6 that document is probably in court; right? 7 MR. PIETZ: Referring now to the copyright 8 assignment agreement, your Honor? 9 THE COURT: Right. 10 MR. PIETZ: Correct, your Honor. ales THE COURT: Okay. Let me turn this over to you, 12 ir. Go ahead.
13 MR. PIETZ: Okay. Thank you, your Honor.
14 If it please the court, I have some documents
15 which I can show on the monitor including to Mr. Cooper.
16 I just want to make sure we have both the copyright
17 assignments.
18 MR. PIETZ: Are the monitors arrayed so that the 19 court can see them?
20 THE COURT: Yes. The court has its own. We got 21 that before the sequester.
29 MR. PIETZ: All right.
23 DIRECT EXAMINATION
24 BY MR. PIETZ:
20 Q Mr. Cooper, my name is attorney Morgan Pietz.
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27
1 Thank you for coming here today.
2 Did anyone ever ask you to become a corporate 3 representative of AF Holdings LLC?
4 A No.
5 Q Did anybody ever ask you to become a corporate
6 representative of Ingenuity 13 LLC?
7 A No.
8 Q Mr. Cooper, now, I would like to show you some
S) documents, and Mr. Ranallo I believe just passed out 10 copies of the first. So what’ we have here is a 11 complaint. 12 It is one of the consolidated cases presently
13 before the court. For the record, it is Civil Action No.
14 212 CV 6636, an action filed here in the Central District LS of California.
16 Mr. Cooper, have you ever seen this complaint 17 before?
18 A No.
19 Q I am going to skip now to the last page of this
20 complaint or actually it is not quite the last page. It 21 is the last page of the main document, or, sorry, it is 22 actually Exhibit B to the complaint. Here is the first 23 page of Exhibit B, now, Mr. Cooper.
24 It says copyright assignment agreement
25 top, and then I will note for the record that the
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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1 copyright at issue is Popular Demand which it states in
2 the first paragraph. Moving down to the second page of 3 the agreement, Mr. Cooper, you will note that there is a 4 signature on the right where it says Alan Cooper.
5 Is that your signature, sir?
6 No. That is not.
7 You are quite sure about that?
8 Yes. I use a middle initial.
9 Mr. Cooper, I would like to show you a similar
10 document which has appeared in a different case. What we 11 fees here is a copyright assignment agreement. This is 12 for a different AF Holdings copyright styled Sexual
13 Obsession which it lists in the first paragraph. For the
14 record, this is Northern District of California No. 12 CV 15 2048.
16 Mr. Cooper, I am going to turn now to the
17 second page of this copyright assignment agreement, or I 18 guess it would be the third page. There is a signature 19 there on the right that says Alan Cooper.
20 Is that your signature, sir?
21. A No, it is not.
22 Q Did anybody ever ask you to become a corporate
23 representative or otherwise involved with a ere
24 called AF Films LLC?
25 A No.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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1 And you are quite sure that is not your signature?
2 Very sure it is not mine.
3 om Mr. Cooper, I would like to show you now another
4 aceunene. and I will note for the record that this is a
5 verified petition to perpetuate testimony filed in the
6 Eastern District of California, 12 CV 8333, have you ever
7 seen this document before, Mr. Cooper, prior to within
8 the last couple of days?
9 a No.
10 MR. WAXLER: Your Honor, I would like to object to 11 that question.
12 THE COURT: Object to the question as to whether
13 or not he has seen the document?
14 MR. WAXLER: Well, this inquiry is beyond the
15 scope of the OSC. The OSC is about four cases that was 16 filed in the Central District of California. Now, we
17 have heard about a Northern District case and Eastern
18 District case that he is being questioned about which we 19 did not address in our papers, and it is not what this 20 OSC is about.
21 THE COURT: Well, it has become about it. It has 22 | become about fraudulent filings in federal court.
23 MR. PIETZ: I would add, your Honor, that it all 24 goes to a pattern and practice.
25 Q Mr. Cooper, looking now at the verified petition, I
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 30 0f 119 Page ID #:2431
1 am going to skip to the last page. You will note that it
2 is signed by Mr. Gibbs. On this page which reads at the
3 top notarized verification, there is a slash S,
4 type-printed signature that says Alan Cooper, and it says 5 Alan Cooper, Manager of Ingenuity 13 LLC.
6 Did you ever sign a notarized verification for 7 this document?
8 A No, I aie not.
9 Q Did you ever give anyone permission to sign your 10 name for you on this document? 11 A No. 12 MR. PIETZ: Mr. Ran, would you pass out Exhibit
13 53. I will note for the record that I am moving now to
14 what has been previously filed with this court as Exhibit 15 S which is the declaration of Nicholas Ranallo in
16 opposition to a motion to shorten time filed in the
17 Northern District of California. And I am going to move
18 now to an exhibit to this motion.
19 It is actually the second to last page in that 20 filing, Exhibit S, and what we are looking at is a
21 business entity detail for.an entity called VPR, Inc.
22 from the Minnesota Secretary of State website.
23 Q Mr. Cooper, you will note there that under
24 officers, it says Alan Cooper and it lists an address of
25 4532 East Villa Teresa Drive, Phoenix, Arizona, 85032.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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1 Mr. Cooper, have you ever been to Arizona?
2 No, I haven't.
3 So that is not your residence, is it?
4 No.
5 Do you have any knowledge of that address
6 whatsoever?
7 A No, I do not.
8 Q Did anybody ever ask you to be the president of 9 VPR, Inc.? |
10 A No.
11 Q Did anybody ask you to be any other role in
12 connection with that company?
13 A No.
14 | 0 Mr. Cooper, I am going to move now to what has been 15 previously identified in the record as Exhibit T. What 16 we have here is a notissues.com registration.
17 Mr. Cooper, did you ever register an Internet
18 domain name called notissues.com or perhaps it is
19 pronounced notissues.com?
20 A No, I did not.
21 Q I am going to zoom in now. Mr. Cooper, I will note 22 that on the second page it says registrant Alan Cooper, 23 and it lists that same Phoenix address that we mentioned 24 a moment ago. Am I correct in presuming that there where
25 it says administrative contact, and it lists the e-mail
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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1 address, johnsteele@gmail.com. Am I correct in assuming
2 that johnsteele@gmail.com is not your e-mail address,
3 Mr. Cooper?
4 A No, it is not.
5 Q . Mr. Cooper, after you hired attorney Paul Godfread, 6 and he let the other side know that he was going to be
7 representing you in actions in Minnesota, did you hear
8 from John Steele?
9 A Yes. He called me twice and left two voicemails 10 and sent me two texts. i1 Q So this was after Mr. Godfread let Prenda know that 12 he was your attorney; isn't that correct?
13 A Yes.
14 QO How many times in a row did Mr. Steele call you 15 when that happened?
16 A I think five or six times right in a row.
17 Q And that was, more or less, to your understanding, 18 was that more or less immediately after your attorney 19 Paul Godfread let the other side know that he was going 20 to be representing you? |
21 Yes. It was right after Paul let him know.
22 Within a matter of minutes, would you say, sir? 23 Yes.
24 Have you heard from Mr. Steele recently,
29 Cooper?
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33
1 A He had left two other voicemails on my phone and
2 two other texts within the last couple of weeks, I think 3 it was.
4 Q And, more recently than that, have you heard from 5 him again?
6 A Yes. Yeah. There was a two week spell between
7 them that he had called me twice.
8 Q And, Mr. Cooper -- pardon me, I didn't mean to
9 interrupt you. Go ahead, sir.
10 A He left four voicemails altogether and four text 11 messages.
12 Q And, Mr. Cooper, my understanding is that you
13 brought copies of these voicemails to potentially play
14 for the court; is that correct, sir?
15 A Yes.
16 Q If the court will indulge me a moment, I will play 17 those into the microphone for the record.
18 THE COURT: Okay.
19 MR. PIETZ: If it’ is okay with the court, I would 20 like to ask Mr. Stoltz to assist me with this. He is the 21 brains of the operation on the technology here.
22 Apologize, your Honor. We are starting from (23 | the beginning.
24 (Audio recording played.)
25 BY MR. PIETZ: Mr. Cooper, have you spoken with John
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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1 Steele enough times to recognize his voice?
2 A Oh, yeah. That is his voice. That is him.
3 Q So that was Mr. Steele on those recordings that we 4 just heard a moment ago?
5 A
6 Q The three lawsuits that Mr. Steele was referring
7 to, do you think he means the three defamation cases
8 recently filed against you and your attorney, Paul
9 Godfread by John Steele, Paul Duffy and Prenda Law in 10 Florida, the Northern District of Illinois and the 11 Central District of Illinois? Do you think that is what 12 he was talking about?
13 A Yes.
14 Q Mr. Cooper, I, for my part, don't have anything 15 further. Perhaps the court does, but, before I step 16 down, I would like to thank you for coming here today? 17 THE COURT: Thank you, counsel.
18 MR. BRODSKY: Very briefly, your Honor. Thank
21 CROSS-EXAMINATION 22 BY MR. BRODSRY: 23 Q Mr. Cooper, you have never met Mr. Gibbs; is that
24 correct?
25 A Yes.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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1 QO And you have never spoken to him as well; is that
2 correct?
3 A No, I have not.
4 Q And you have exchanged no correspondence with him 5 whatsoever; is that correct?
6 A That is correct.
7 Q Do you know a gentleman by the name of Grant Berry, 8 B-E-R-R-Y?
9 | A Yes, I do. 10 QO Who is Mr. Berry? 11 A He is the one that introduced me to John when I was 12 selling my house.
13 Q And what type of relationship if any do you have
14 with Mr. Berry?
15 A He was the realtor for -- he was a realtor that I 16 had for selling my house.
17 And did you ever tell or ask Mr. Steele in
18 . Berry's presence how is my porn company doing?
19 No, I have not.
20 You sure about that?
21 Yes.
22 MR. BRODSKY: Thank you, your Honor. Nothing
23 further.
24 THE COURT: All right. Same questions that he
25 asked with respect to -- what about Mr. Paul Duffy, do
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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1 you know him?
2 THE WITNESS: No, I do not.
3 COURT: Ever heard of him?
4 BE WITNESS: Through these things that are going
6 COURT: All right.
7 E WITNESS: That way only.
8 BE COURT: All right. Anyone else?
9 PIETZ: Your Honor, just very briefly, as a
10 technical matter, I would like to ask that the documents
11 I went through with Mr. Cooper be admitted into evidence. 12 That was the copyright assignment with Popular
13 Demand. I would ask that that be admitted into evidence
14 as Exhibit 1. The copyright assignment agreement for
15 sexual obsession, I would ask that that be admitted as
16 Exhibit 2. The verified petition in the Eastern District 17 of California matter previously identified in this action 18 as Exhibit L, I would ask that it be admitted now as
19 | trial Exhibit 3. The declaration from Mr. Ranallo which 20 has the printout for VPR, Inc. previously fies Kees as 21 Exhibit S, I would ask that be admitted as trial Exhibit 22 4. And the notissues.com registration seeeioueiw
23 identified here as Exhibit T, I would ask be admitted as
24 trial Exhibit 5.
25 THE COURT: Any objection?
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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1 MR. BRODSKY: Yes, your Honor. As to Exhibits 3,
2 4 and 5, we would object on the ground of relevance. 3 THE COURT: Sustained. All right. Everything 4 else comes in. What about the audio? Is there a
5 transcript of the audio?
6 MR. PIETZ: Your Honor, we can prepare it.
7 COURT: Would you. Thank you.
8 MR. PIETZ: We would be happy to, and we will 9 lodge it with the court, your Honor.
10 THE COURT: Thank you. Okay. That will be 11 received as well.
12 All right.
13 Anything, gentlemen? Nothing.
14 You may step down, sir. Appreciate you
- 15 coming. 16 MR. PIETZ: Your Honor, at tits time, I think it 17 might be helpful for me to suggest a few other things 18 that I am prepared to discuss today for the court. We 19 have heard tet Mr. Cooper. 20 What I might propose now is turning to 21 Mr. Gibbs. Mr. Gibbs has noted in his declaration or 22 attempted to characterize himself as merely a, quote, 23 independent contract attorney for Prenda Law. I am 24 prepared to present evidence today showing that, in fact,
25 Mr. Gibbs is really what amounts to a de facto chief
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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1 operating officer of Prenda Law. And I have a number of
2 documents and exhibits I am prepared to go through with 3 Mr. Gibbs on that account.
4 In addition, I am prepared to show through
ng
5 cross-examination of Mr. Gibbs that his investigation in 6 these cases was objectively unreasonable. Although I was 7 not able to contact Mr. Larguire(phonetic) or Mr. Denton, 8 a former client of mine in a previous case who was
9 previously named by Mr. Gibbs as a result of what I view 10 as a shoddy online investigation is here to testify that 11 the main fact that Mr. Gibbs relied upon in that case
12 turned out to be completely incorrect.
13 Fourth, your Honor or I should said say third,
14 there are representatives here today from both AT&T and 15 Verizon who can conform that the court's discovery orders 16 were unambiguously violated in this case.
17 Fifth, and, finally, your Honor, if the court 18 is inclined to hear it, I am prepared to explain my
19 understanding of how Prenda is organized and present
20 evidence showing that the court does indeed have personal 21 jurisdiction over Mr. Steele, Mr. Duffy, Mr. Paul
22 Hansmeier and Ms. Angela Van Den Hemel.
23 THE COURT: Let's begin with the ISP's.
24 MR. PIETZ: Very well, I would ask now that
25 Mr. Huffman come forward. Is he here?
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
Exhibit 1 - Page 38 of 119
Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 39 of 119 Page ID
23
24
29
#:2440
39
(The witness was sworn. )
THE CLERK: Please have a seat. Please state your full and true name for the
record, and spell your last name?
THR WITNESS: My name is Bart Huffman,
H-U-F-F-M-A-N.
THE COURT: One second.
THE CLERK: Counsel, I think we are going to first
have our 2:30 matter. I think it will be a little
shorter. So I am going to call the next matter and then
we will have you guys come back.
(Recess from 2:30 to 2:31 p.m.) THE COURT: Okay. Sorry for the interruption.
Let's go back on the record in the AF Holdings, Ingenuity
13 LUC.
All right. Go ahead, counsel.
MR. PIETZ:
Thank you, your Honor.
DIRECT EXAMINATION
BY MR. PIETZ:
Q Mr. Huffman, what is your job; Sir? I am an attorney. With what firm?
Lock Lorde.
Q And do you represent AT&T in that capacity, sir?
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40
1 A Yes, I do.
2 Q And how long have you been -- how long have you 3 been representing AT&T, sir?
4 A I have been representing AT&T for about six or
5 seven years, I suppose.
6 Q And do you have personal familiarity with matters 7 before AT&T that involve the Prenda law firm?
8 A I do.
9 Q So on a day-to-day basis over the past few years, 10 have you handled Prenda matters for AT&T? 11 A A number of them.
12 Q Very well. You prepared a declaration which I
13 submitted with the court in this matter; isn't that
14 correct, sir?
15 A That is correct.
16 Q And that declaration was based on an investigation 17 performed by your client, AT&T; is that correct?
18 A Well, that declaration recounts a series of events
19 where Angela Van Den Hemel who has contacted us on a
20 regular basis to follow-up on subpoenas contacted us with 21 respect to the subpoenas in the case that was
22 consolidated with others in this proceeding. And as we 23 looked into it, we discovered that the case had been
24 stayed as far as discovery goes.
25 Q So you are familiar, then, with this court's
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
Exhibit 1 - Page 40 of 119
Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 41 0f 119 Page ID
23
24
25
#:2442
4l
October 19th, 2013 discovery order vacating the subpoenas
in the AF Holdings cases now pefore this court?
A Yes.
Q And as far as AT&T is aware, did Prenda in fact
stop seeking subpoena returns on the cases consolidated
before this court after October 19th, 20137
MR. WAXLER: Calis for speculation.
THE WITNESS: I am not aware that they did. AT&T
did not, to my knowledge, receive any notice of the order
and furthermore Ms. Van Den Hemel, I think I am saying
her name right, contacted us seeking to follow-up and
obtain information presumably with respect to the
subpoenas in that case. And we received, I should add,
we received, I and my firm receive the information pretty’
much directly as it comes in from CT Corporation so with
respect to these type of subpoenas. Q BY MR. PIETZ: So with respect to these type of
subpoenas, then, the receipt or non receipt by AT&T would
come into your office; is chat correct?
A Typically, it would.
MR. WAXLER: Calls for speculation.
THE COURT: Hang on. What is your objection?
MR. WAXLER: Calls for speculation, your Honor.
This witness is being asked to say whether
ATsT received something, and I think that is speculative
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 42 of 119 Page ID
#:2443
42
for him to be able to testify as ig. ghee AT&T might
have received it or not. THE COURT: I understood it to be how mail is
handled im his office, but let's walk eneeuen it again. MR. PIETZ: Very well,
Q So did your office receive a copy of the
October 19th, 2013 order vacating the subpoenas in this
case?
A Not independently. When we looked on Pacer as
we -- we routinely do with respect to production requests
and the like, we found the order.
Q So your office was not served by Prenda or anybody
affiliated with Prenda with this court's October 19th
discovery order?
A
That is correct.
Q And did you investigate with your client, AT&T, as
to whether or not AT&T received a copy of the court's
October 19th order?
A I did not specifically ask them that, no.
0 And were you contacted only the once by Angela
Van Den Hemel regarding the court's October 19th order in
this action?
A No. She contacted my paralegal twice and my paralegal would routinely refer those type of inquiries
to me.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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#:2444
43
Q So she actually asked twice for subpoena returns to pe made after the October 19th discovery order?
A That's correct. And when T looked at the Pacer
records and saw the order, I then responded to Ms. Van Den Hemel saying that the discovery had been stayed and we of course would not be producing discovery
in the case at that time.
MR. PIETZ: I would ask that the declaration of
Bart Huffman be admitted as evidence in this hearing. I
think we are on Exhibit 6.
THE COURT:
Okay.
THE WITNESS: And would you also want to have the
declaration of my paralegal admitted as well?
MR. PIETZ: Yes. I would ask as well that that be
admitted as Exhibit 7. It is the next filing on the
docket.
THE WITNESS: Camille Kerr.
Q BY MR. PIETZ:Could you spell her name for the
record.
A Certainly. C-A-M-I-L-L-E, K-E-R-R.
THE COURT: All right. Any objection, gentlemen?
MR. BRODSKY: Is she going to be testifying, your
THE COURT: I have no idea.
MR. BRODSKY: Object on the ground of hearsay.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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1 THE COURT: Is she here?
2 Q BY MR. PIETZ: Mr. Huffman, is Ms. Kerr here today?
3 A Ms. Kerr is not here today. I can testify though
4 that I oversaw and reviewed all of the items stated in
5 her declaration, and they are part of our regularly kept 6 records and they are consistent with our files, were
7 overseen by me at every single step and reviewed and they 8 are, in fact, true and correct.
9 Q So you are personally familiar with the facts in
10 - Kerr's declaration?
11 I am, and I reviewed it in detail.
12 THE COURT: What is the substance or the subject
13 matter?
14 THE WITNESS: Ms. Kerr submitted a separate
bs) declaration simply because she was the addressee on the 16 e-mails from Ms. Van Den Hemel.
17 THE COURT: All right. And her declaration
18 attests to?
19 THE WITNESS: Her declaration attests to the truth 20 and authenticity of the e-mails that I attached thereto. 21 THE COURT: That is all?
22 THE WITNESS: That is all.
23 THE COURT: All right. I will permit it. Okay. 24 Gentlemen?
25 MR. BRODSKY: No questions, your Honor. ,
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
Exhibit 1 - Page 44 of 119
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#:2446
45
THE COURT: All right. Sir, you may step down.
Thank you.
THE WITNESS: Thank you, your Honor.
THE COURT: I do have one question.
Ms. Van Den Hemel, when you advised her that you had
learned from Pacer of the court's order guashing those
subpoenas, did she sound surprised?
THE WITNESS: She never responded at all.
THE COURT: All right. Thank you.
MR. PIETZ: Your Honor, also in attendance today
igs an attorney for Verizon, Mr. Benjamin Fox. If it
please the court, I would suggest we offer him.
THE COURT: Yes. Please.
(The witness was sworn. )
THE CLERK: Please have a seat. And please state
your full and true name for the record and spell your
last name.
THE WITNESS: Benjamin Fox, F-O-X.
DIRECT EXAMINATION
BY MR. PIET2:
Q Mr. Fox, what is your occupation, sir?
A I am a partner at Morrison and Foerster here in Los
Angeles. Jl ama lawyer.
Q And do you represent Verizon in that capacity?
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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#:2447
46
Q And how long have you represented Verizon in that
capacity?
A I can't tell you the date. I know that the first matter was the Eastern District of California Rule 27 proceeding filed by Ingenuity 13, and that is the case
that you had a copyright assignment for that you showed
earlier this afternoon.
Q So you appeared on behalf of Verizon in that Rule o7 petition action in the Eastern District of California;
is that correct?
A Correct.
Q And I believe that was in 2011. Since then, have you had occasion to deal with litigation matters
involving the Prenda law firm?
A
Yes. Q So you have handled those issues for Verizon on a
day-to-day basis in the past two years?
A Yes. Many of them.
Q Very well. You prepared and submitted, filed, 1
should say, a declaration with the court earlier today;
isn't that correct, sir? A I prepared for Verizon and obtained a signature
from Mr. Sean Moriarty who is a Verizon representative in
Arlington, Virginia. Yes.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
Exhibit 1 - Page 46 of 119
Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 47 of 119 Page ID
23
24
25
#:2448
47]
Q So you are familiar with the facts that were
averred in the declaration filed with the court today?
A Yes, I am.
Q And did you investigate whether the facts are
correct prior to filing the document here today?
A IT did.
Q And can you explain to me the substance of the
declaration with respect to whether or not Verizon received a copy of the court's October 19th discovery order?
A Sure. Verizon has,been the recipient of I think
literally hundreds of subpoenas from the Prenda firm, and Verizon is a party in a DC Circuit appeal where AF Holdings was the plaintiff based on one of the copyright assignments that bears the name of Mr. Cooper. Verizon’ is very focused on what has been happening in these cases and has been paying close attention to it.
So if Verizon had received the October 19
order from this court, Verizon would have known that, and
I would have received it as well. My e-mail doesn't have
any record of it. I have searched. I know that Verizon
has now searched. Is there some theoretical possibility
that maybe it was sent to someone at Verizon and not
forwarded to the correct people? Possible. But having
not seen anything from Mr. Gibbs that suggests it was
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
Exhibit 1 - Page 47 of 119
Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 48 of 119 Page ID
#:2449
48
sent, you know, my conclusion is that it was not sent to
Verizon.
Q
So,
then, in terms of the usual channels, the
custom and practice, the way subpoenas would normally
come in from Verizon, did you check all of these means of
receiving subpoena information?
A I checked. MR. WAXLER: Calls for speculation, your Honor.
MR. PIETZ: Let me rephrase.
THE COURT: What is your objection?
MR. WAXLER: Calls for speculation. He is asking
this witness to speculate about what Verizon's policies are in receiving subpoenas.
THE COURT: I thought you were talking about
Morrison and Foerster's policy.
MR. PIETZ: That's right. I will rephrase and
make it more clear, your Honor. Let me rephrase. Q So did you personally check Morrison and
.Foerster's, the way that Morrison and Foerster would
normally receive information about a subpoena? Did you check and make sure that no notice was received of the October 19th discovery order?
A Yes. I made a reasonable search, and I looked
wherever that I thought was appropriate to look.
Q And you communicated with your client that you --
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
Exhibit 1 - Page 48 of 119
Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 49 of 119
#:2450 Page ID
49
well, let me back up. The gentleman who executed the declaration
that was filed with the court today, what was his name,
again, “Siu?
A Sean Moriarty.
Q And is that somebody you normally communicate with
these type of matters.
A Yes. Q And you spoke with Mr. Moriarty, and can you explain, did you have him investigate, from Verizon's end, whether notice was received?
The Verizon team investigated. Yes.
Including Mr. Moriarty?
Yes.
Q Very well. And so, then, to the best of your knowledge, based on both his investigation and a review
of Morrison and Foerster's own records, Verizon did not
receive a copy of the October 19th discovery order; isn't
that correct?
MR. WAXLER: Your Honor, it is basically taking
hearsay. Calls for speculation. He is asking the
witness what Verizon did. Verizon has given a
declaration that says it does not appear.
THE COURT: Overruled.
THE WITNESS: Correct.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 50 0f 119 Page ID #:2451
Q BY MR. PIETZ: I would ask, then, that the
declaration submitted by Mr. Moriarty with the court earlier today be admitted into evidence as Exhibit 7. Sorry. Pardon. Exhibit 8.
THE COURT: It will be admitted.
All right. Mr. Brodsky, do you wish to
inquire?
MR. BRODSKY: I do not, your Honor. I have no questions.
THE COURT: Sir, you may step down.
THE WITNESS: Thank you.
THE COURT: All right. Now, I would also like to
hear from your former client?
MR. PIETZ: Very well. Mr. Nason, are you in attendance today? (The witness was sworn.)
MR. WAXLER: Your Honor, I would object to this
line of questioning please.
THE COURT: He hasn't asked any questions yet.
MR. WAXLER: I know that, but this witness has no relevant testimony to this subject matter. He is not a party to any of the four cases at issue in this OSC. It is not even a federal court case that he was a defendant
in, your Honor. He has no relevant testimony that he
could state in connection with this OSC.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 51 0f119 Page ID
#:2452
51
THE COURT: Maybe yes. Maybe no. If we are
talking about a pattern and practice, and from what I have seen, this is a cookie-cutter litigation. Sometimes the only thing that I see changed on the complaints are
the ISP's addresses and the name of the film, but, in all
other respects, they seem to be all the same even the
declaration from the technical expert as to what he did in order to identify the infringer. It is the same
document. So I hear your eoint., Ff 1 don’: find it to
be relevant, I will discard it.
MR. WAXLER: Your Honor, just for the record, Mr. Gibbs! declaration does go through exactly the
different things that he did in order to determine
whether in the two cases that you cited in the OSC whether he was able to locate the infringer and who that
was. And there is nothing cookie cutter about that
effort that he put in his declaration.
THE COURT: All right. Thank you.
Go ahead.
THE CLERK:
Please state your full and true name
for the record and spell your last name.
THE WITNESS: Jessie Nason. That is N like Nancy,
A-S-O-N.
THE COURT: Go ahead, counsel.
Is that one S or two?
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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#:2453
52
THE WITNESS:
One S.
THE COURT: All right.
THE WITNESS: Well, two in Jessie. Sorry.
DIRECT EXAMINATION
BY MR.
PIETZ: Q Mr. Nason, have you heard the name Brent Gibbs before? Yes.
And in what context, sir?
He was the lawyer who brought the case against me,
Lightspeed Media versus my name.
Q And where was that -- and I represented you in that
case, did I not, sir?
A Correct.
Q And was that in the Los Angeles Superior Court filed in 2012?
A Yes.
Q I will note for the record that the case is Lightspeed Media Corporation versus Jessie Nason, Los
Angeles Superior Court No. NC057950.
MR. WAXLER: Your Honor, I would like to object
again. This case is not even a copyright case. It was a
case where the individual here was alleged to --
THE COURT: Where are you from?
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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53
MR. WAXLER: I am from Los Angeles, your Honor.
THE COURT: There are no speaking objections in Los Angeles.
MR. WAXLER: I'm sorry, your Honor.
THE COURT: Okay. What is this case about?
MR. PIETZ: Your Honor, if I might speak to that very briefly. What we have seen from Prenda Law is a slightly different twist in some of their cases on copyright litigation, and what it is is essentially an attempt to address a copyright infringement case in state law clothing, well, state law and the Computer Fraud and Abuse Act.
So the causes of action at issue in the
Lightspeed case was a computer fraud and abuse act claim which essentially alleges that downloading and distributing content, and the content is nebulously specified in the complaint amounts co: Gonpueee Fraud and Abuse Act violations. And then there were a variety of related claims all of which were preempted by the Copyright Act for conversion, unjust enrichment and the
like. But, really, what it was, and, in fact, and I can
speak to this longer although perhaps it is getting off
on a tangent, in reality what happened, was at some point somebody probably hacked into a password protected
website, but, then, Prenda started logging IP addresses
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 54 0f119 Page ID
#:2455
54
and suing people in CFAA claims even though really the
gravamen of the case was the use of BitTorrent. So it is
similar, but, in any event, the issue in Mr. Nason's case
that I think is relevant here is the same, and that
specifically what was the investigation that was
performed prior to naming Mr. Nason as the defendant in
the case, and it is fairly bread and butter.
THE COURT: Okay. Go ahead.
Q Mr. Nason, are you familiar with the reason that
Gibbs stated that he had named you as a defendant? Yes. MR. WAXLER: Calls for speculation.
THE COURT: He said stated. You did say stated;
right?
MR. PIETZ: Yes, your Honor.
THE COURT: All right. Overruled.
e) BY MR. PIETZ: So, in any event, what was that
reason, Mr. Nason.
A I believed it to be that he supposed I lived by
myself in my apartment, and so he considered me a single
male.
Q And, Mr. Nason, is that correct? Do you live
alone?
A No, I do not.
Q And who do you live with, Mr.. Nason?
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 55 o0f119 Page ID
#:2456
39
A My wife of nine years. Q And-have you lived with her for the past
nine years?
A Correct.
Q So, at any point, you know, save perhaps for a
vacation, consistently for the past nine years, you have
always lived with your wife; is that correct?
A That's correct.
MR. PIETZ: That is essentially all I need from
Mr. Nason, your Honor. I might have some questions about
Mr. Gibbs, or perhaps now I could show the court the
section of the transcript from the hearing in the Nason
matter where Mr. Gibbs, when pressed by the court as to
how it is and why it is he justified having named
Mr. Nason as a defendant, Mr. Gibbs specifically stated,
well, because we determined that he lived alone. It is
just incorrect.
And, indeed, the court denied my motion
on that basis even though it turned out to be incorrect.
MR. BRODSKY: Your Honor, for the record, may we
move to strike the testimony on the ground that it. is
irrelevant and beyond the scope of the court's OSC.
THE COURT: You may step down, sir. Thank you.
THE WITNESS: Thank you.
MR. PIETZ: I am looking now for the specific
section of the transcript.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 56 of 119 Page ID #:2457
1 THE COURT: Don't worry about it.
2 MR. PIETZ: All right. I can find it afterwards. 3 Thank you, your Honor.
4 THE COURT: All right. Let's now switch to the
5 jurisdictional issue.
6 MR. PIETZ: Oh, you know what, your Honor, I have 7 here the actual original copy of the transcript which
8 perhaps I will lodge with the court and move to mark as
9 Exhibit 9, I believe we are on.
10 THE COURT: Okay.
11 MR. PIETZ: And, Mr. Ranallo, if you can find the
12 pin cite, we will go ahead and add it.
13 May I approach to give this to the clerk, your
14 Honor? 15 MR. WAXLER: We would object to the inclusion of 16 that transcript as an exhibit.
17 THE COURT: = will take a look at it. We will
19 Where was this? Was this in Torrance? 20 MR. PIETZ: Yes, it was, your Honor. Judge 21 Vicencia.
22 THE COURT: Small world. My old court reporter.
24 MR. PIETZ: I am just looking now for the diagram
25 which I think will assist in explaining all of this.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
Exhibit 1 - Page 56 of 119
Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 57 of 119 Page ID #:2458
ib We seem to be a bit off kilter there, don't
2 we. Interesting. Well, in any event --
3 , MR. WAXLER: What exhibit is this?
4 . MR. PIETZ: Yes. Marked as -- I will tell you in 5 just a moment. Double H, previously on the record.
6 In any event, perhaps less useful than I hoped
7 it would be, but I can at least talk the court through
8 By age 9 THE What is your source? I mean, 10 electronic ciel MR. This is a demonstrative exhibit, your 12 13 : I know that. What are you using, 14 15 : It is Trial Pad on my iPad, your 16 17 It is on your iPad? 18 : Yes, sir. 19 And you can't do anything to adjust 20 21 MR. PIETZ: We do have a color paper copy of the -
22 document. It will take just a moment to pull it. 23 THE COURT: Okay. Go ahead. 24 MR. PIETZ: In any event, Mr. Ranallo, perhaps you
@ 25 can look for that.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 58 of 119 Page ID
#:2459
58
MR. BRODSKY: Your Honor, may I inquire of the
court for a moment?
THE COURT: Sure. MR. BRODSKY: I am not quite sure what the
relevance of this is, the foundation for it or exactly
what counsel is doing.
It just seems to be his own statement of his investigation. THE COURT: Do you know the general subject that
we are going to discuss now?
MR. BRODSKY: I believe so, your Honor.
THE COURT: Okay. That is what I think it is, and hopefully it will help him. Now, when it gets down to the source of this material and the accuracy of this
material, I hope I will be hearing from you gentlemen. I
don't have the independent knowledge of this one way or
the other. Thank God for the adversarial process.
MR. WAXLER: Your Honor, so, then, should
Mr. Pietz be on the stand if he is going to give essentially testimony about this exhibit?
THE COURT: I don't make a habit of placing
lawyers under oath, but this case may change that. I
figure officers of the court will not knowingly make
misrepresentations to the court, will they.
MR. WAXLER: No, they won't.
THE COURT: Until this case.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
Exhibit 1 - Page 58 of 119
Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 59 of 119 Page ID #:2460
1 MR. WAXLER: My client hasn't in this case.
2 MR. PIETZ: Your Honor, to explain what it is,
3 what I thought I might do is to give a very brief
4 overview of the oieaniestes, and, then, I thought I
5 would go through some specific documents about Mr. Steele 6 and a couple of arguments. So this is really argument,
7 essentially, a couple of exhibits that go to Mr. Steele's 8 connection to the California as well as a couple of
9 points about Mr. Paul Hansmeier and Mr. Duffy.
10 THE COURT: Okay. 11 MR. PIETZ: So, in any event, this is a chart that 12 was essentially prepared. This was prepared by my office
13 essentially as a tool to aid in the understanding of how
14 Prenda Law appears to have evolved over the past few
15 years.
16 Essentially, it started out here with Steele 17 Hansmeier, and John Steale <= J ey that is little 18 hard to see ~~ John Stesle, Paul Hansmeier and Brett 19 Gibbs. Mr. Steele and Mr. Hansmeier were the named
20 partners in the firm, and Mr. Gibbs was the of counsel 21 originally. When they first started out, circa 2011 -- 22 THE COURT: I am sends to have to stop you. How 23 do you know that Mr. Gibbs was of counsel with Steele and 24 Hansmeier?
25 MR. PIETZ: Your Honor, I can point to the
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 60 of 119 Page ID #:2461
1 specific exhibit, but there are pleadings of which the
2 court can take judicial notice where he is listed on the
3 pleadings as of counsel to Steele Hansmeier.
4 THE COURT: You are aware of the fact that
5 Mr. Hansmeier doesn't know what capacity Mr. Gibbs was 6 working at his law firm?
7 MR. PIETZ: Correct, your Honor. So, in any
8 event, let me put it this way. Mr. Gibbs filed documents
9 in federal court indicating on the caption that he was of 10 counsel to Steele aes:
11 THE COURT: Okay.
12 MR. PIETZ: Now, I believe I can also speak to
13 this if the court is so inclined that Mr. Lutz was
14 holding himself out to the world as a paralegal at that 75 time, working, according to Mr. Paul Hansmeier, solely 16 for Mr. Steele. At this time, most of the lawsuits with 17 a few exceptions filed by Prenda around 2011 were on
18 behalf of a porno production, pardon me, aduit
19 entertainment production company that actually ssaete
20 | have heard of before. And that is this list of clients 21 here.
22 | What happened is that sometime in 2012, the 23 Steele Hansmeier firm was disbanded or become Prenda,
24 sold its client book to Prenda Law. We are not entirely
25 sure exactly the nature of the transaction, but, in any
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
Exhibit 1 - Page 60 of 119
Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 61 0f119 Page ID #:2462
1 event, at that point, Paul Duffy became involved as the
2 nominal figurehead of the Prenda Law enterprise.
3 However, there are indications that Mr. Steele and
4 Mr. Hansmeier remain involved and Mr. Gibbs has declared 5 that he essentially continued on as of counsel handling 6 the same cases only now on behalf of Prenda Law, Inc.
7 ‘-rather than Steele Hansmeier LLC.
8 At the same time that Steele Hansmeier became 9 Prenda, sometime around, then, in 2012, I am not exactly 10 sure, Mr. Hansmeier started up his own shingle in 11 Minnesota, the virtual office called the Alpha Law Firm 12 LLC. So, essentially, Mr. Hansmeier sometimes files
13 pleadings in federal court that list his affiliation as
14 Alpha Law Firm LLC, but, by the same token, Mr. Gibbs has 15 identified Mr. Paul Hansmeier as being the person from 16 whom he took direction at Prenda.
17 And, indeed, the court may recall from the 18 deposition transcript read over the weekend that
19 Mr. Hansmeier testified that, indeed, his clients
20 deposited their trust account funds into the Prénda Law 21 Firm account rather than to the Alpha Law Firm account. 22 THE COURT: Stop. I hate to interrupt you.
23 But she means more to me than this argument, 24 and we have had her going at light speed for an
C) 25 hour-and-a-half. Right. So I am going to take a break,
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 62 of 119 Page ID #:2463
il and we can all take a break. How about 10 minutes.
2 Okay.
3 MR. PIETZ: Very good. Thank you, your Honor. 4 (Recess from 2:58 to 3:09.)
5 THE COURT: All right. Mr. Pietz.
6 MR. PIETZ: Thank you. I will attempt to keep 7 this section very brief, and then we will move on to some 8 documentary evidence. This is just a summary.
9 So, as I was saying, sometime around 2012, 10 there was a bit of a shift in the Prenda business
11 strategy. Mr. Hansmeier -- so what happened is these 12 companies, AF Holdings, LLC, Ingenuity 13 LLC and then
13 there is a couple of other companies which are the ones
14 in the CFAA cases. That is Arte de Oaxaca LLC and Guava 15 LLC. And the CFAA cases have primarily been filed in
16 state court and have indeed tried to use -- certain
17 states have presuit discovery procedures that are more 18 lenient than Federal Rule of Civil Procedure 27. So it 19 is sort of a newer twist is these state court CFAA cases 20 and Arte de Oaxaca.
21 But, in any event, according to Mr. Hansmeier 22 in his deposition, these essentially shell company
23 plaintiffs are owned by a nYystery trust. Mr. Hansmeier,
24 as 30(b) (6) deponent -- well, anyway, I won't go into
25 that. The court read it. According to Mr. Gibbs'
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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63
L special counsel, though, on the same day, February 19th,
2 there is conflicting testimony essentially saying that
3 Livewire Holdings LLC is actually the current holder of 4 AF Holdings and Ingenuity 13.
5 So, in any event, these are the parent
6 companies, some mystery trust and Livewire Holdings LLC. 7 There is documents, you know, I had this sort of set
8 aside to potentially go through with Mr. Gibbs, but I can 9 also just show the documents, show what I have. In any 10 event, there is documents showing Mr. Gibbs as in-house Ta counsel for Livewire Holdings.
12 There are various other connections between
13 Livewire Holdings and the attorneys we see over here.
14 Mr. Dugas is a local counsel who has worked at both
15 Prenda and Alpha Law which I can show through his
16 LinkedIn profiles, obviously, not central to the case.
17 Mr. Dugas' wife has been identified on LinkedIn as
18 in-house counsel for Livewire Holdings.
19 In addition, what I will talk about now is the 20 way that we see the lawyers. Mr. Hansmeier has been both 21 30BC deponent for AF and as its counsel. In any event, 22 what seemed to happen is that at some point these cases 23 filed on behalf of Ingenuity, AF Holdings, Arte de Oaxaca 24 and Guava LLC are cases where what appears to have
CO 25 happened is the lawyers essentially took assignment of
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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64
the underlying intellectual property rights in these
mysterious shell companies. One recurring theme here is the way that when we are seeing the straw men, there is always a connection to John Steele. So, for example, in the VPR International, we see John Steele is the attorney. We see Alan Cooper listed on the corporate registration. The address listed for VPR International, the 4532 East Villa Teresa Drive. My understanding based on documents that have been submitted with the court is that is an address that comes up for John Steele's sister and a gentleman named Anthony Saltmarsh, in addition, of course, to being the address listed for Mr. Cooper. So on various federal court filings in the Northern District of California, all of which are attached as exhibits to the deposition that was lodged with the court which the court read over the weekend, when pressed to identify the person at AF Holdings who would be made available for an early neutral settlement evaluation conference, there are various court filings listing the owner of AF Holdings as somebody named Salt Marsh, two words.
So, in any event, what seems to perhaps be the case is that this Anthony Saltmarsh lived at this address with John Steele's sister which was essentially used as a
front for various entities involved in Prenda activities.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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1 I don't want to spend too much time on just
2 the overview. What I thought I might do is shift instead 3 to taking the nonappearing folks individually. And I
4 thought I might start with Mr. Steele. So I have some
5 documents which go to that, and I will switch back now
6 to -- okay. There we go. So I will note that in the
7 declaration submitted to the court by Mr. Steele on
8 Friday, he claims that he resides in the State of
9 Florida.
10 I will point out that when Mr. Steele was
11 under threat of sanction in the state of Florida, he
12 declared to the court there that he resided in the State
13 of Nevada and only visited the State of Florida. So I
14 have here the affidavit of John Steele that he filed, and 15 you can see the file stamp on the top. It is Middle
16 District of Florida, Case No. 812 CV 1685 that was filed 17 on December 20th, 2012. And, in Paragraph 2, Mr. Steele 18 swore to the court that my legal residence is Las Vegas, 19 Nevada, and I also spend one to two weeks a month in
20 Miami, Florida. So my understanding must be then that 21 sometime between last December and now Mr. Steele has
22 | decided that his residence is not Nevada but rather
23 Florida.
24. In any event, and before moving on, I would
ge s > 25 ask the court to take judicial notice of the fact. that in
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 66 of 119 Page ID #:2467
1 the -- that this affidavit which was filed in the public
2 record in the Middle District of Florida that Mr. Steele
3 states that he spends one to two weeks a month in Miami, 4 Florida. Mr. Ranallo can pass out copies of the
5 affidavit to everybody.
6 So, in any event, let's look at some other
7 documents about Mr. Steele. And what I would start with, 8 I believe, is a declaration here, and I will ask
9 Mr. Ranallo again to pass this out for the court, the
10 declaration of Michael B. Stone, and what this
11 declaration is, the declaration itself is essentially
12 just authenticating the document, but the document at
13 issue is a collection of pleadings in a Northern District
14 of California action in which it was a case filed on
15 behalf of a Prenda client.
16 Well, this I think was an actual company that 17 people have heard of in an earlier case, but in any
18 event, here, we see the pleading. So the declaration
19 authenticates it, and then Exhibit 1 is a copy of the
20 complaint which as we can see was filed in the United
21 States Districk Court. forthe. Nerthern Districr: ot
22 California, and it is Civil Action No. 511 CV 3648.
23 Well, in any event, the interesting thing
24 about this complaint is who signed the subpoena that was
25 directed in this case at a John Doe defendant who resided
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
Exhibit 1 - Page 66 of 119
Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 67 of 119 Page ID #:2468
1 in California. And the answer, and here we see a copy of
2 the subpoena, pardon me, authenticated by Mr. Stone.
3 This is the letter that the ISP normally sends out, and, 4 here, we see a copy of the subpoena itself. And this is 5 in the same action.
6 Then, we see, there, that this subpoena which 7 again was signed by John Steele in a California action
8 requesting information of a John Doe defendant in the
9 State of California. So, essentially, I would ask that
10 this declaration of Michael Stone be admitted into
11 evidence as Exhibit, I believe, we are on 9. 12 Is that correct, Madam Clerk? Q 13 THE CLERK: 10.
14 MR. PIETZ: Pardon me. 10. I am one behind.
15 THE COURT: All eee. Any objection?
16 MR. WAXLER: Your Honor, I just Sash ion the
17 relevancy of it as to Mr. Gibbs. Again, it is not one of 18 the cases that you put in your OSC.
19 THE COURT: It will be admitted.
20 MR. PIETZ: Similar document that I will move onto 21 next. What we have here is a deere on which was filed 22 on the docket in a case in the Northern District of
23 California by a man named Samuel Teitelbaum. It is
24 Northern District of California No. 311 CV 5628. And we
25 can see here that it is pending in the Northern District
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68
1 of California.
2 In this declaration, Mr. Teitelbaum explains
3 that he received a letter directed to him in California
4 from Prenda Law and that the letter which was mailed to
5 him in California which is there is a copy of it right
6 here. It is on Steele Hansmeier letterhead, and if we go . 7 to the last page; we see that the letter, mailed into the 8 State of California in a case pending in the Northern
9 District of California, is signed by John Steele,
10 attorney and counselor at law.
11 So, in any event, I would ask that this be
12 admitted into evidence as Exhibit 11, and these both go
13 to showing that Mr. Steele has indeed reached into the
14 State of California in terms of his actions in BitTorrent 15 copyright litigation cases.
16 THE COURT: All right. Will be received.
17 MR. PIETZ: So what I will do now, I think that
18 the other facts that I had already pointed out about the 19 other gentlemen who are not here today, so I mean Paul
20 Hansmeier and Paul Duffy, I pointed out in my opposition 21 to the objections which was filed on Friday, but, in
22 Seneral:, I would argue the jurisdictional issue as
23 follows.
24 What we have from Mr. Gibbs is a declaration
25 saying that anything that was potentially improper in
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69
these cases was done at the direction of his superiors at
the Prenda law firm. He identifies those people as John
Steele and Paul Hansmeier. Interestingly enough,
Mr. Duffy isn't on the list or perhaps maybe not as much. Mr. Duffy has his California bar license in the state of California and has substituted in in Mr. Gibbs! place in a variety of actions in the Northern District of California. Mr. Hansmeier, in addition to being identified by Mr. Gibbs as essentially running a law firm doing Business in California, flew to California apparently of his own free will to appear as the corporate 30(b) (6) deponent of AF Holdings LLC. So we
have Mr. Hansmeier reaching into the state of California,
attending a deposition in California in a Northern District of California case, representing essentially that the same plaintiff that is at issue here, AF Holdings LLC.
So at least with respect to Mr. Duffy who has his bar license here and Mr. Hansmeier who flew here as a 30(b) (6) deponent and has been identified, I think it is ‘fairly clear that probably both general and specific jurisdiction exists.
Mr. Steele has perhaps been a little more
careful about trying to keep his fingerprints off here,
but I would remind the court that Mr. Gibbs has
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70
identified him as essentially running a law firm in
California which by the way is not qualified to do business in California, and I checked with the state bar and it is not registered as a law firm here.
But in any event --
THE COURT: You talking about Prenda now? MR. PIETZ: Talking about Prenda. Yes, sir.
In any event, I apologize. I don't have documents to back that up, but I can provide them. But, in any event, I think that with respect to Mr. Steele when you take Mr. Gibbs' declaration and add it together with a subpoena signed by Mr. Steele. And, pardon me, I
will note one other thing about the declaration of
Michael Stone. In addition to authenticating the documents, he also included some back and forth, some meet and confer correspondence he had with Mr. Steele. So, essentially, Mr. Stone noticed the fact that Mr. Steele was not licensed in California and that he had signed the subpoena and wrote to Mr. Gibbs saying this subpoena is invalid. And what happened is that Mr. Steele wrote back directly without cc'ing Mr. Gibbs and essentially shrugged off the concerns about the
subpoena being signed by an attorney who doesn't have a
license in California.
So, in any event, I think that with respect to
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1 Mr. Steele, when you add together the subpoena issued
2 into the state of California, a demand letter issued
3 under the state of California as well as Mr. Gibbs'
4 testimony, it is pretty clear that-the court has personal 5 jurisdiction. |
6 I don't have a tremendous number of additional f exhibits on this topic. However, I do have quite a few
8 with respect to what I view as Mr. Gibbs' central role in 9 the Prenda law organization.
10 MR. BRODSKY: Your Honor, may I make one comment?
11 COURT: You can make more than that. Thank
13 Yes. Go ahead.
14 MR. BRODSKY: We are not taking a position at the 15 present time on the jurisdictional issues that the court 16 is deciding, but there were statements made about my
17 client that I believe mischaracterize the evidence that
18 has been put forward.
19 THE COURT: Okay. Listen, let me just sort of
20 tell you the way we are going to proceed here. At this
21 point, you will have the floor. All right. I can't
22 imagine you are going to raise too much in opposition to 23 the jurisdictional issue. Otherwise, he is in. So you
24 go right ahead.
C) 25 Now, a number of things -- I am just going to
7
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1 give you some of my thinking. A number of things were
2 stated in your papers. Some of them caused me some
3 concern because they were inaccurate. For example, you 4 make the argument that certain people were identified as 5 infringers because there was no way, for example, that
6 someone else could have been piggy-backing off of their 7 modem because of the size of the lot, where the house is 8 situated on the lot, the proximity or lack of proximity 9 of other residences around, et cetera. 10 Your representation of these homes and the 11 neighborhoods and juxtaposition of other houses around 12 them was simply not accurate. Not in the least bit. And
13 I found that troublesome when you are asking me, then, to
14 accept all of your our arguments.
15 So I just want to naew-eaee out there to let 16 you know some of my thinking.
17 MR. WAXLER: Our turn, your Honor?
18 THE COURT: I don't care who. It is this side. 19 MR. WAXLER: We will call Mr. Gibbs to the stand, 20 your Honor.
21 THE COURT: All right.
22 (The witness was sworn.)
23 MR. PIETZ: Your Honor, before we move ae
24 Mr. Gibbs, may I request that we admit into evidence the
25 affidavit of John Steele as Exhibit 12, the Michael Stone
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1 declaration as Exhibit 13 -- oh. Pardon me. Stone and
2 Teitelbaum have already been admitted so just the 3 affidavit of John Steele. I would ask that that be
4 admitted as Exhibit 12.
5 THE COURT: I think that's right. Are we up to
6 12? Okay. All whats.
7 THE CLERK: If you could state your full and true 8 name for the record and spell your last name.
9 THE WITNESS: Sure. Brad Gibbs, G-I-B-B-S.
11 DIRECT EXAMINATION 12 BY MR. WAXLER:
13 Q Mr. Gibbs, who is your present employer?
14 A I am not currently employed.
15 Q You became employed -- I'm sorry. You became an of 16 counsel, 1099 independent contractor for Steele
17 Hansmeier; correct?
18 A Yes.
19 Q Was Steele Hansmeier an existing law firm at the
20 time that occurred?
21 A I Menheve they had been existing for a number of
22 months at that point.
23 Q What were you told your role would be at Steele
24 Hansmeier?
25 A Basically, California counsel for Steele Hansmeier
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in bringing lawsuits on behalf of their clients.
Were you paid as an employee? No. Did you share in Steele Hansmeier profits? No. Were you on the management of Steele Hansmeier? No. And who did you understand were the decision makers of Steele Hansmeier? A John Steele and Paul Hansmeier. Q When you were an of counsel to Steele Hansmeier, who supervised you? A John Steele and Paul Hansmeier. Q Did you have periodic meetings while at Steele Hansmeier to discuss cases?
A Yes, we did.
Q- And were those weekly meetings?
A Yes. Sometimes they would be sending the schedule, but, yes, mostly weekly meetings.
Q Who participated in those meetings?
A John and Paul would call me, and they would hold a weekly meeting.
Q And were these by phone or in person?
A These were by phone.
THE COURT: Were they ever in person.
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75
1 THE WITNESS: I went sometimes and met them, and
2 then we had meetings, yes, in person at that point, but
8 this was only a couple of times.
4 THE COURT: This is out of California?
5 THE WITNESS: Yes. Well, I have met with Paul
6 Hansmeier in California prior to this deposition, but the 7 other, everything was out of California.
8 Q BY MR. WAXLER: When -- were any cases that you filed 9 while at -- while of counsel to Steele Hansmeier, were 10 any of those cases settled? 1 A
12 And did the checks, the settlement checks come to
15 Q Did you have a client trust account in any account 16 in which you had an interest at all as a signatory?
17 A No. Actually, I don't even have a client trust
18 account. |
19 Q So the checks were sent to Steele Hansmeier's trust 20 account?
21 A I don't know. I would assume they were. They
22 weren't sent to me. They were sent to Steele Hansmeier. 23 Q And how did you learn that Prenda law was going to
24 substitute in or take over the cases from Steele
C) 25 Hansmeier?
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76
A Basically, I heard of the name Prenda Law. They
told me that Prenda Law was now taking over the business. Steele Hansmeier was no longer going to exist at that point. Q And who is they in that answer? A That would be John Steele and Paul Hansmeier. Q Were you on the management. committee at all of Prenda Law?
No.
Were you partner at Prenda Law?
No.
What was your affiliation with Prenda Law?
The same as it was for Steele Hansmeier which would
counsel, California counsel essentially for Prenda
So you were compensated with a 1099?
Yes. That is correct.
And did that ever change over the course of the eine which you were counsel to Prenda Law? A In terms of what? Q In terms of your relationship with that firm? A No. I wonit only say that they, John and Paul, had asked me to help the other counsel in different states,
basically, like, give them advice in doing their own
cases in different states. That was the only change
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77
really. Other than that, I was just California counsel.
Q While of counsel to Prenda Law, did you ever receive any settlement checks? A Myself personally, no. Q Did you have a client trust account at Prenda Law that you somehow administered or controlled?
No.
And were you supervised at Prenda Law?
Yes, I was.
Who were you supervised by?
Paul Hansmeier and John Steele.
Were you supervised by Paul Duffy?
No.
And when you say supervised, could you just describe what you mean by that? How did they supervise you?
A Sure. You know, they essentially were the ones
that would initiate cases. By that, I mean, they would tell me they wanted to file certain cases in California, for instance, and they would instruct me to go ahead and
file those. And they would give me the authority to do
so. ‘I would be told what cases we are looking at and how
many cases we are talking about, and then I would file the cases.
CY And they would give me general guidelines on
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1 what to do and sometimes the cases would be settled by
2 John as was pointed out earlier, and sometimes they gave 3 me certain parameters which I could settle the case
4 myself.
5 Q Did you ever talk to anybody that you understood to 6 be the client, AF Holdings?
7 A No. The communications were solely through Paul
8 Hansmeier and John Steele.
9 Q Did you ever talk to anybody who said they were 10 affiliated with Ingenuity 13? 11 A Well, I mean, aside from Mark Lutz who is the CEO 12 of Ingenuity 13, but aside from that, no. All my
13 communications were straight through Paul Hansmeier and
14 John Steele.
15 Q Did Mr. Lutz ever give you direction on the
16 handling of any of these cases directly?
17 A No. Actually, I only found. out about that
18 connection, I would say, after the cases in the Central 19 District were filed, about him being the CEO. I didn't 20 know that before. |
21 Q And the cases that were filed in the Central
22 District were dismissed; correct?
23 A That is correct.
24 Q And whose decision was it to dismiss those cases?
25 A Ultimately, it was John Steele and Paul Hansmeier's
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79
1 decisions. We had talked about it. As counsel of record
2 here, I just kind of broke down like a cost benefit
3 analysis of those cases. And they said, basically, go
4 ahead and dismiss them because -- they said go ahead and 5 dismiss them.
6 Q When the cases were filed, did you have a
7 discussion with anybody about whether notice of
8 interested parties should be filed?
9 A I did. Yeah. 10 Q And who did you have discussions with?
11 A Mostly Paul Hansmeier. Yes. Mostly Paul Hansmeier 12 but sometimes John Steele, I guess. I don't know. [It
13 was a while ago I guess.
14 Did you file those notices of interested parties? 15 Yes.
16 What did they say in connection with AF Holdings. 17 They said there was no other interested parties. 18 Do you have any personal knowledge of that
19 statement as untrue?
20 A No, I did not. No. I still don't. I mean, in 21 terms of I know there is other things involved in terms 22 of the trust and stuff like that, but in terms of other 23 people involved, I was only taking direction from these 24 guys in terms of these types of filings.
25 Q And these guys are?
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80
1 A These guys are Paul Hansmeier and John Steele.
€) 2 Q In connection with Ingenuity 13 cases did you {
3 notices ef interested parties?
4 A That is correct. Yes.
5 Q And were you ever advised that the information --
6 how did you obtain the information for those notices?
7 A Well, I just, I would ask them, you know, are there 8 any other people that I should be noticing on this
9 document that I am filing with the court.
10 Q Who is them in your response?
11 A That would be Paul Hansmeier and John Steele.
12 Q Were you told not to do that again. Instead of
13 saying them, were you told by Paul Hansmeier, John Steel
14 that the information you included in those notice of 15 interested parties was correct?
16 A So they actually told me, I was instructed to fill 17 those documents out like I did.
18 Q There was a question raised by the court this
19 morning about the failure to have filed notices of
20 related cases. My question is did you consider filing 21 notices of related cases when you filed the actions in 22 the Central District of California?
23 A Yes, we did.
24 Q And could you please describe for the court what
C) 25 your thought process was as a result of, in not filing
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1 these notices?
2 A So we had filed -- well, I filed on behalf of
3 Steele Hansmeier, then Prenda Law, a number of cases in
4 the Northern District of California, and those were cases 5 with multiple people in them.
6 And what the court in the Northern District of 7 California concluded, almost every court, at that point, 8 after filing multiple cases was that joinder was not
9 valid and that they basically told us in no uncertain
10 terms that ehese cases weren't related. Therefore, that 11 informed my belief in terms of whether we wanted to
12 relate these cases or not. They said these cases,
13 essentially, through their orders and through live
14 hearings, that these cases aren't porneed, they should be 15 brought as individual actions. So it was just a decision 16 to bring those individual actions and not relate the
iy cases based on that.
18 Q .And your experience in Northern California, that
19 predated the filings of the Central District actions that 20 we are here to discuss today?
21 A Yes. I don't even know if I was admitted into the 22 Central District at that point.
23 THE COURT: Let me jump in a second. You were
24 told in the Northern District of California that when you
(> 25 filed a lawsuit on behalf of either AF Holdings or
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1 Ingenuity 13 versus Does 1 through many, that that
2 joinder was improper; correct?
3 - THE WITNESS: Some cases. Some cases it was not 4 improper. Some judges felt differently.
5 THE COURT: All right. But if it involved
6 different movies, downloads, different times, different 7 people, different places, different ISP addresses, they 8 said you need to file separate lawsuits; right?
9 THE WITNESS: Some of them were the same clients, 10 same videos. 11 THE COURT: Okay. But even then?
12 THE WITNESS: Yes.
£3 THE COURT: Even then, you had to file separate
14 lawsuits?
15 THE WITNESS: Yes. We were pointing that
16 direction even there was a footnote in one of the courts' 17 opinions saying basically that we were trying to get
18 around the filing fee, and that is what they thought so 19 we should file individual cases from there on out.
20 THE COURT: Of course, you were, but that is not 21 where we are going here. Now, that deals with joinder in 22 one lawsuit and consolidating really separate and
23 complete causes of action, different parties in a single 24 lawsuit.
C) 25 Now, what we are talking about here is with
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83
1 respect to your notice of related case.
2 THE WITNESS: I understand.
3 THE COURT: You do because I can hear it now. I 4 can hear you going it is compound, all the stuff that you 5 do.
6 Do you realize -- no. Did you equate the
7 instructions you got from the court eee improper
8 | consolidation of a lot of cases, a lot of claims into a 9 single complaint, did you somehow conflate that with the 10 issue of related cases, notices of related cases? And 11 you know what that is for, here; right? 12 THE WITNESS: I understand.
13 THE COURT: You understand why we are looking for
15 THE WITNESS: I daeerstends
16 THE COURT: Tell me what your understanding is as a to why the court is interested in knowing whether or not 18 there are related cases.
19 THE WITNESS: Because if they are similar cases, 20 my belief is the court wants to know about those so the 21 court can handle it so that there are uniform decisions 22 essentially that are held from the same court.
23 THE COURT: Excellent. A completely different
24 objective -- right .-- than consolidating a lot of
C) 25 different lawsuits in one complaint; right? Completely
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1 different. This is judicial economy.
2 THE WITNESS: I understand. Yes. I understand |
3 what you are saying. In terms of that it was just the
4 decision that was made, and perhaps it was the wrong
5 decision, but, you know, the decision was made.
6 THE COURT: Okay. Don't do that. Decision that
7 was made. Who made that decision?
8 THE WITNESS: It was a discussion amongst myself, ) Paul Hansmeler and John Steele and, probably, mostly, 10 Paul Hansmeier. I don't even know if Steele was involved 11 in that discussion or not, and that is just what we 12 decided to do.
13 THE COURT: All right. The law firm that you were
14 working for -- and I guess initially we are talking
15 Steele Hansmeier or the other way around.
16 THE WITNESS: It was Steele ian
7 THE COURT: Okay. Did that firm have, in its
18 California office, did it have a client trust account? 19 THE WITNESS: In California.
20 THE COURT: Yes.
21 THE WITNESS: Well, I was working of counsel to 22 them. So, no, I never had my own client trust account. 23 The funds were always going through the law firm.
24 THE COURT: Were you operating out of your home?
25 . THE WITNESS: Yes, I was originally.
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1 THE COURT: Did at any time you ever have a
2 business office even if it was a suite any place?
3 THE WITNESS: Not for Steele Hansmeier.
4 THE COURT: What about Prenda?
5 THE WITNESS: Prenda Law, yes. They wanted me to 6 get an office. So I got an office, and I actually moved 7 twice.
8 THE COURT: At that time, did you have a client
9 trust account?
10 THE WITNESS: No, your Honor.
11 THE COURT: Was it your understanding that in
12 California that you were required to have a client trust
13 account?
14 THE WITNESS: My belief was that considering I was 15 working as of counsel to the Prenda Law, and Prenda Law 16 had the trust account, that was my understanding of how 17 the money was dealt with. I didn't ever -- they never
18 saw my bank account. I was paid like by Prenda Law as an 19 attorney, of counsel attorney, 1099. And so my
20 understanding was that they had a trust account. And,
21 therefore, you know, the people that were working with
22 them did not need trust accounts themselves.
23 THE COURT: Okay. All right. And you only handle 24 one kind of business; right?
25 THE WITNESS: What do you mean by that, your
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86
al Honor? I only handle one kind of business?
2 THE COURT: Yes. S THE WITNESS: Can you explain your question? 4 mean in terms of just being plaintiff's lawyer?
5 THE COURT: Plaintiff's lawyer for copyright
6 infringement for the adult film industry. 7 THE WITNESS: Well, no, actually. So originally
8 when I was working for Steele Hansmeier, I was also
9 working for an arbitrator. So I had other business, but 10 it was just a 1099 worker at the same time. I was 11 helping him out with his cases, and so when Prenda law 12 came around, we basically, I said, look, you guys are
13 trying to put a lot of work on my plate essentially, and
14 I am kind of split here. And they said, well, we would
15 like to basically have you work solely for Prenda Law,
16 this is being Paul Hansmeier and John Steele. And so I 17 wrapped up my arrangement with the arbitrator, and I
18 became exclusive doing stuff for Prenda Law at that
19 point.
20 THE COURT: Listen, last January, this past
21 January, a few weeks ago, I guess you started withdrawing 22 as counsel of record.
23 THE WITNESS: That is correct, yes.
24 THE COURT: All right. And you just testified
@ 25 that you are no longer employed by Prenda?
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THE WITNESS: That is correct. I am no longer employed by Prenda or any other corporation or LLC that is involved in these cases. I have moved on. I am going to work again for the arbitrator and find some other work essentially. You know, so that is where I am right now. Actually, I was working for Livewire for two months, but there was actually a couple of things that happened in terms of I never even got paid for my two months there.
THE COURT: Two months where?
THE WITNESS:. Two months at Livewire.
THE COURT: You did get paid by Prenda though;
THE WITNESS: Before that, yes. During 2012, yes.
THE COURT: So why did you leave?
THE WITNESS: Well, there is multiple reasons for it. Personal reasons, I am getting married soon. So I wanted to focus on that, but, you know, to be honest with
you --
THE COURT: That would be good.
THE WITNESS: Yeah. No. I am looking forward to it. And to be honest with you, these types of things raising up themselves, I just didn't want to be affiliated with it anymore. It wasn't worth it. I was getting a lot of harassment. My family was receiving
e-mails and correspondence from people, my fiance, my
87
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88
1 parents. I just didn't see, and I was getting a lot of
2 negative exposure that, you know, I just didn't want
3 anymore ultimately.
4 And, then, also, I didn't really get along
5 with one of the people that managed me. So I, you know, 6 I decided to go ahead and exit and told them about that, 7 and, yeah, and that is the situation essentially.
8 THE COURT: Okay.
9 Q BY MR. WAXLER: Just to complete your employment
10 picture because there was perhaps some gaps. You learned
I sometime in late 2012 that Prenda Law was no longer going 12 to be your, I will just say the word employer but you
13 weren't going to be of counsel to Prenda Law anymore;
14 correct?
15. 1 A That is correct.
16 Q And how were you informed of that?
17 A I was told I would say middle December or so.
18 There was a brainstorming issue about -- they were, John 19 Steele and Paul Hansmeier were brainstorming about
20 whether they wanted basically to start their own company, 21 I guess. And the company was Livewire, turned out to be 22 Livewire. And that Livewire would essentially buy AF
23 Holdings and Ingenuity 13 and Guava.
24 And so I was informed that as of January 1,
25 you know, Livewire extends you this offer, and basically
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89
1 if you don't accept this offer, then, you know, we are
2 going to part ways. So the offer was to be in house
3 counsel for Livewire, and so I was hired w2 employee for 4 this company which is a holding company of copyrights.
5 Q And you understood that one of the subsidiaries of 6 that company included AF Holdings; correct?
7 A | That was my understanding, yeah.
8 Q When did you come to a different understanding?
9 A Oh. Well, during the deposition, I came toa
10 different understanding because obviously the deposition il was said what was said, and I asked Paul Hansmeier about 12 that.
13 Q And what we are talking about here is
14 Mr. Hansmeier's testimony that there was a trust that
15 owned AF --
16 A That is correct.
17 Q And before that testimony, you heard that
18 testimony, you understood as of January 1, that eivewiee 19 would own --
20 A Yes.
21 Q Livewire would own AF Holdings?
22 A That is correct.
23 Q And that is why in at least one of the pleadings
24 you put that you are in house counsel for AF Holdings
25 because that was a company that was owned by Livewire;
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90
1 correct?
2 A I was specifically told to sign as in house counsel 3 for AF Holdings by Paul Hansmeier in that case. I was
4 actually because of Mark Lutz' position as CEO, I was
5 trying to get his signature for that document, but Paul
6 Hansmeier said, no, you are in house counsel for Livewire 7 thereby in house counsel for AF Holdings, you sign it on 8 | behalf of the client.
9 Q Is one of the other reasons you decided to leave 10 Livewire is because you learned that the stamp was being geal used for your signature? 12 A Yes. Certain letters were sent out without my
13 knowledge. I never authorized them, never approved them.
14 When I questioned John about them, he was, like,
15 basically said, this is your role. This is what you have 16 to do. You have to send these letters out, and I said I 17 don't feel comfortable, these aren't even my cases,
18 essentially. And, you know, I actually e-mailed Mark
19 | Lutz about that, eras said you got to talk with John 20 and Paul about this.
21 THE COURT: I'm sorry. What kind of letters are Ze we talking about? Is that the settlement letters? 7
23 THE WITNESS: Settlement letters. They had been 24 using -- they originally said they were going to do F
C> 25 stamp for me for certain things, but I thought they were
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O1,
only for my cases. And, you know, later, I found out
that stamp might have been used for cases that I never even participated in or seen the letters before they went out.
THE COURT: Let me make sure I understand now. Livewire eventually became the parent of AF Holings and Ingenuity 13 LLC?
THE WITNESS: That was my understanding. I was told that, yeah. And that is why I was hired and a lot of people were hired in terms of working as W2 employees for Livewire. So it was the company that was a holdings company that would do litigation as well as distribution.
That is what they told me.
THE COURT: And you were a W2 employee?
THE WITNESS: That's correct. And I still have not been paid for that position. Q BY MR. WAXLER: That was for a period of two months;
correct?
A That's correct. And I gave him my notice early
February essentially.
THE COURT: Where was Livewire's offices?
THE WITNESS: Livewire has an address of Washington DC address, but, obviously, I don't know if it
has an office to be honest with you. It is just a matter
C3 of, kind of a cloud type office. It might be a situation
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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1 where -- I am just speculating right now. 2 THE COURT: You have never visited Washington DC 3 offices? 4 THE WITNESS: No. I believe it is just a PO box 5 over there. That is just a mailing address for them. 6 THE COURT: Did that form letter requesting 7 payment of the settlement sums, did that letter change to 8 reflect that payment now should be sent to Livewire at 9 the Washington DC address? 10 THE WITNESS: Absolutely. It wasn't sent to me or 11 anything like that. It was sent to that mailbox, and 12 then I believe it would be sent back to somebody at some
13 point somewhere. But that is the kind of issues that I
14 started having, and along with a lot of other different 15 issues. So I just decided to -- I asked them if I could 16 go ahead and substitute out with Paul Duffy who had a
17 license in California. I talked to Paul Duffy about
18 that, he said sure, and then I proceeded to do that.
19 THE COURT: All right. So you substituted out. 20 Now, how long were you general counsel for Livewire?
21 THE WITNESS: Two months basically. I mean, I
22 guess you could say, I think the official documents were 23 signed. It never actually specified that I was in house 24 counsel, but that is what I was told. The documents were
25 just general employment documents, but that was from I
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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1 think January 7th on. That's when I signed the
2 documents.
3 Q BY MR. WAXLER: You were not general counsel. You 4 were in house counsel; right?
3 A In house counsel. Sorry.
6 Q You have never held the position of general
7 counsel, have you?
8 A No.
9 THE COURT: Did you know about any other employees
11 THE WITNESS: Yes. 12 THE COURT: Was there a bookkeeper
13 accountant?
14 THE WITNESS: Yes.
L5 THE COURT: Do you know whether -- well, okay. 16 Thank you.
Ly MEMBER OF THE AUDIENCE: Your Honor?
18 THE COURT: You are?
19 MEMBER OF THE AUDIENCE: Jason (inaudible). I 20 represent Godfread and Cooper in some of the defamation 21 cases.
22 THE COURT: You represent Godfread?
23 | MEMBER OF THE AUDIENCE: Yes.
24 THE COURT: So back in Minnesota, lawyers have
25 lawyers?
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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#:2495
94
MEMBER OF THE AUDIENCE:
I am from Massachusetts.
THE COURT: And how can I help you?
MEMBER OF THE AU
DIENCE:
IT had a conversation with Mr. Gibbs probably back in October regarding AF Holdings where he told me that he was national counsel for AF
Holdings and that any settlement negotiations were to be
made through him. And the local counsel for that case confirmed that he was the one who told me to contact
Mr. Gibbs.
THE COURT: Have you come to understand as have I
that every representation made by a lawyer associated
with Prenda is not necessarily true?
MEMBER OF THE AUDI)
ENCE: IT have known that for
three years. THE COURT: Okay. Good. So you aren't shocked,
are you?
MEMBER OF THE AUDIENCE: No.
THE COURT: Nor am I, but thank you.
MEMBER OF THE AUDIENCE: You are welcome.
Q BY MR. WAXLER: Mr. Gibbs, you know you are under
penalty of perjury testifying here today?
A That is correct.
Q Have you ever made a representation to a court in the Central District of California or any other court
that you know is untrue?
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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No.
THE COURT: Well, that isn't exactly accurate, is it? You have caused documents to be filed with, let's just be kind and say falsified signatures.
THE WITNESS: Your Honor, I had no idea that these were allegations --
THE COURT: That is "yes" or "no".
THE WITNESS: Your Honor, I think it is still an
open question.
THE COURT: Oh. No. It is not an open question. We have had the individual testify under oath. Those were not his signatures on these documents.
THE WITNESS: And that is the first time I have
heard in terms of him saying out loud that he absolutely did not sign those papers, those exact papers. He said before he was not associated with the companies, but that is the first time I heard him say he did not sign those exact papers.
THE COURT: Are you saying that you have had prior conversations with him where he either admitted or tacitly admitted that he signed?
THE WITNESS: No, your Honor. I haven't had any conversations with Mr. Cooper.
THE COURT: That was my thought. I thought that
C) you had never met the man.
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1 THE WITNESS: No. I never met the man. He never
2 met me, and I have never talked with him.
3 THE COURT: . And you were acting on the
4 representation of John Steele that --
Dae THE WITNESS: And Paul Hansmeier.
6 THE COURT: -- that they actually had the
7 signatures, the authentic signature of the real Alan
8 Cooper?
9 THE WITNESS: Yes. I was told that. And I
10 investigated that in terms of, you know, what is going on 11 here when the first Alan Cooper issue arose, and I was
12 told that there was no issue, that he -- that he did sign
13 the document. And so I also did a little bit of research
14 and found out that the assignor, even if the assignor is 15 invalid, it still is a valid document. So combining
16 those two things, I still believed -- I don't think I
17 filed a case after that. It was just a matter of kind of 18 addressing with these guys, and they were my sole
19 | information for this type of thing.
20 THE COURT: Okay. You also indicated that you had 21 on file the original or eee signature of Alan
22 Cooper, but you really don't, do you?
23 THE WITNESS: No. No. I never said TI had on
24 No. Prenda law or Steele Hansmeier had it on
25 They told me they had it on file, and that is I
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97
1 believe what was in the declaration. So I said, okay,
2 you know, do we have this notarized copy, do you guys
3 have it over there? I don't think I ever saw it, but
4 they told me, yes, we have copies of this, it is here, 5 and you can go ahead and file that based on our
6 representation to you.
7 THE COURT: Do you feel like yon nae been duped 8 by Hansmeier and Steele?
9 THE WITNESS: In a way, yes.
10 THE COURT: Okay. This has been very
bal eniaennG,
12 Q BY MR. WAXLER: Mr. Gibbs -- I just have a few more
13 your Honor. Mr. Gibbs, have you ever been a 30(b) (6)
14 witness for AF Holdings?
15 No.
16 Have you ever been a 30(b) (6) witness for Ingenuity 17
18 No.
19 Have you ever received client funds in any of your
20 capacities as oouusey affiliated with Steele Hansmeier or 21 Prenda Law?
22 A No.
23 Q The court expressed some disappointment in the
24 manner in which you described how you determined the
25 location of the houses that sat on the lots, and the
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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98
1 router, the ability for the router to pick up people who
2 were not authorized to pick up that signal. And let me 3 ask you some questions about that.
4 A Sure.
5 Q Tt is your understanding that when wireless routers 6 are used and they determine what the distance is where
7 they would be able to pick up a signal, that those
8 determinations are made where there is an open field and 9 not placed in the middle of a structure?
10 A Yeah. I have read some reports on that and that Lal the projections are basically favorable to them because 12 there is no obstacles in the middle, there is nothing
13 like walls or fences or bushes or trees which have a
14 great effect on wireless signals.
15 Q Tell me how you described the Denton residence and 16 what facts you had to support your description of the
17 Denton residence?
18 THE COURT: Which city? Is this Santa Maria or
19 West Covina?
20 THE WITNESS: I believe it is the second one.
21 MR. WAXLER: I will find it, your Honor.
22 MR. PIETZ: Your Honor, I might suggest we look at 23 Exhibit II which is the picture, the geographical Google
24 maps picture of the two residences.
25 THE COURT: That is why I wanted to know. I mean,
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99
al I went to Google Earth as well, and I just want to know
2 which one we are talking about because in West Covina,
3 you made some representations of fact that you asuee
4 possibly know to be true.
5 THE WITNESS: Well, your Honor, based on my
6 personal knowledge of wireless networks, I believed they
7 were true.
8 THE COURT: I am talking about of the residence 9 itself. It is a gated community. 10 I'm sorry. I didn't mean to interrupt you. 11 MR. WAXLER: I am happy 6 address that, your 12 Honor. 13 Q Mr. Gibbs, the map that you have seen that was 14 offered by Mr. Gibbs and Mr. Pietz -- and I apologize if
ales) I am butchering your name, by the way --
16 MR. PIETZ: Pietz.
17 MR. WAXLER: Pietz.
18 That is not the type of map that you saw; correct? 19 No, that is not.
20 Please describe the map that you looked at when you 21 made the representations in the filings that we have done 22 in this courthouse.
23 A It was a map that you could go down the street, it
24 is actually focused on the house, not on an overview like
25 that, but it is on, basically, there is like a street
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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100
1 view on Google that allows you to, like, Look around the
2 house essentially. Kind of. It is limited to a certain 3 extent though. 4 Q What did you see when you looked at that map? 5 A I saw a house that I believed it was likely not 6 something that wifi could have broadcasted out to 7 neighbors. 8 Did you see a gate? 9 I did see a gate. 10 Did you see several structures? 11 I did.
12 Did you see bushes and shrubs and trees around,
13 between the house structure and the street where someone
14 might be driving by?
15 A I did. Actually, the aerial view, I think, is even 16 covering the house if I remember correctly. So, yeah, it 17 is -- 1 mean, in terms of trees, there is a lot of trees 18 there.
19 Q And it is your understanding that the wireless
20 Signal doesn't just fly over these trees, does it?
21 A No. Actually, I mean, there is just certain things 22 that -- I mean, I think everyone kind of knows when they 23 go into certain people's houses and say, hey, I want to 24 use the wifi connection, there are certain rooms in the
25 house that don't get, even in the same house that don't
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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101
get the wifi connection. So, yes, walls, trees, these
things definitely have a dramatic effect. Sometimes, concrete wall, for instance, sometimes it just altogether stops something. That is my understanding of it.
Q Was your description of the residence in West Covina when you signed your declaration and submitted. these papers and we submitted these papers on your behalf accurate to the best of your knowledge.
A Yes, it was. It was pases on my personal knowledge. Yes.
Q And do you still believe it is accurate despite the very different map that was submitted to the court?
A That is correct. I believe that map might be -~- I
don't even know where the yards come, or I don't know how that works. Q Would the same be true for the residence in Santa
Maria?
A It was the same analysis essentially. It was just part of the full analysis, but yeah.
Q In other words, there were walls, there were buildings, there were shrubs, all of which would block
the signal and reduce by a great extent the range of the
wireless network?
A Yes. That was my impression from them, the street
(3 maps from Google.
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102
MR. WAXLER: May I have one moment, your Honor?
THE COURT:
Certainly.
Q BY MR. WAXLER: Mr. Gibbs, did you knowingly violate
the discovery orders from this court?
A No.
Q Did you cause to be served on the ISP providers the
October 19, 2012 discovery order by this court?
A Yes.
I mean, at least, I thought I did. I had
requested it.
Q And it was your understanding that that was done?
A It was my understanding. I confirmed it
afterwards, and they said it was taken care of.
Q And the first time you learned that an ISP may not
have received a copy of that order was when?
A I believe it was in the response by the ISP, AT&T
possibly.
MR. WAXLER:
I have nothing further, your Honor.
Thank you.
THE COURT: Okay. Thank you. But you started
getting responses from some of the Internet service
providers, didn't you?
THE WITNESS:
I didn't get the responses.
THE COURT: All right. You filed a status report
with the court?
THE WITNESS: Yes.
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103
1 THE COURT: Right?
2 THE WITNESS: Yes.
3 THE COURT: And at the time you filed that status 4 report, there had been no returns on those subpoenas;
5 | right?
6 THE WITNESS: Yes.
7 THE COURT: Then about a week later --
8 THE WITNESS: Well, sorry, let me qualify my
g answer. There were -- at that point, there was nothing
10 in the computers that showed there was any returns on the
LA. subpoenas.
12 THE COURT: Okay. That changed a few days later. 13 THE WITNESS: it changed, I think, on the 7th.
14
15 THE COURT: And, of course, you updated that
16 Status report, you advised the court, then -- right --
17 that suddenly, for whatever reason, people are now
18 starting to send you information on your subscribers;
19 right? You updated your filing, didn't you?
20 Actually, no, you didn't.
21 THE WITNESS: I didn't, your Honor, but if I can 22 explain why.
23 THE COURT: Yes.
24 THE WITNESS: Okay. So I did some investigation
C) 25 on that, and what I was told, and, again, I don't handle
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104
the subpoenas. These are handled out of the Chicago and
Minnesota offices. I was told that these things are usually delivered and that either hand-delivered or I believe mailed but most likely they are just a few blocks away. Like CT Corporation is just a few blocks away, that CT Corporation would send, mail back the information.
I didn't realize that that information was faxed back by Verizon. I never knew that. And I did some investigation on it. And I, also, I talked to Paul Duffy, and the exact date of the court's order in that case, there had been -- he had had some eye surgery and
he also had some trauma related to it.
So what he said was he wasn't picking up his mail as frequently during that time period. So I thought that the information had been received essentially by, through his mailbox at that point but hadn't been input in the computer until later. So that was my understanding. That was my understanding of what had happened.
Q BY MR. WAXLER: Do you now regret not advising the court when you learned on November 7th that Prenda Law
had received information in response to those subpoenas
and that there was information in the status report that
was not correct?
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 105 of 119 Page ID
#:2506 105 1 Absolutely. Absolutely. 2 MR. WAXLER: Thank you, your Honor. 3 THE COURT: Mr. Pietz. 4 5 CROSS-EXAMINATION
6 BY MR. PIRTZ:
a Q Mr. Gibbs, I would ask you to refer to the binder 8 that is there with you to Exhibit EE which is the
9 substitution of counsel that was filed apparently with 10 your CM/ECF account listing you as in house counsel for 11 AF Holdings.
12 A Yes, I am familiar with that document.
13 Q So Mr. Gibbs, just to clarify, then, your testimony
14 is that when you filed that document, that was an
15 accurate representation -- correct -- that you were at
16 that moment in house counsel for AF Holding?
17 A When I filed that document, I believed I was. What 18 I was told afterwards and after the deposition was that 19 that merger or that acquisition hadn't Happened therefore 20 it was still owned by the trust. So I, essentially, I
21 had been told to go ahead and file as in house counsel, 22 but, for some reason, Livewire didn't own AF Holdings at 23 that time.
24 Q So can you just pin down for me exactly when it was
C> 25 that your capacity as in house counsel for AF Holdings
UNTTED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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106
1 begun and exactly when it terminated?
2 A Well, my understanding was that -- my understanding 3 when I was told that I was in house counsel for Livewire 4 that I was therefore in house counsel for AF Holdings and 5 the other companies as well, Ingenuity and Guava.
6 And sulky and I find out later when I was
7 exiting and I was already leaving all these cases
8 essentially, only then, I found out that they had not
9 actually acquired -- Livewire had not acquired AF 10 Holdings according to Mr. Hansmeier. deL Q Mr. Gibbs, have you ever authorized anyone else to 12 use your CM/ECF password? 13 A I don't -- I might have. I don't know.
14 Ja Who?
15 A An individual by the name of Carl. He worked for 16 me, or he worked with fey I guess you would say. dHe
17 actually worked for Prenda Law.
18 Q How about John Steele?
19 A No. I don't think so. Not to my knowledge. I am 20 not saying -- in terms of authority, I did not, no.
21 Q How about Paul Hansmeier, did you ever authorize
22 him to use your CM/ECF password?
23 A I don't believe so. I mean, I know he had my -- he
24 had access to my passwords at one point, so he might C) 25 have, yeah.
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
Exhibit 1 - Page 106 of 119
Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 107 of 119 Page ID
#:2508
107
Q What was your business telephone number while you
worked for Prenda Law?
A It was (415) 325-5900.
Q And what was your business e-mail address when you
worked for Prenda Law?
A It was blgibbs@wefightpiracy.com.
Q Have you ever instructed Prenda local counsel to
file pleadings using your business e-mail and business
telephone number on the pleadings even though it was
their name and physical address?
A So, yes, my name is on -- my e-mail address and my
number and my phone number is on certain cases in other
states. I was instructed to do so like that by Paul
Hansmeier. And, essentially, the way that was explained
to mé was that I would essentially forward all of the
communications to the outside counsel. Yeah. So.
MR. PIETZ: Before we move on any farther, I would
ask that Exhibit EE be admitted. into evidence as Exhibit
13.
QO Mr. Gibbs, I have some copies of a few different
complaints, one that was filed by a local counsel -in
Nebraska and three complaints filed by local counsel in
Florida all of which list the name of the local counsel,
a mailing address in those respective states and an
e-mail address, blgibbs@wefightpiracy.com and your 415
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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telephone number, is that consistent with your
understanding of what the normal practice was at Prenda that your business e-mail and phone would be on pleadings all around the country? MR. WAXLER: Objection. Irrelevant, your Honor. THE COURT: Overruled.
THE WITNESS: That was what I was instructed to do
by Prenda, yeah, was to do that because I was essentially |
helping those guys out on their cases. It was their case, but, yes.
Q BY MR. PIETZ:I would ask Mr. Ranallo to pass out No. 2 which is the declaration of Matt Catlett, an
attorney in Nebraska, and he is authenticating the
service copy of the complaint filed in Nebraska listing Mr. Gibbs. I would ask that that be admitted into evidence as Exhibit 14.
Similarly, Mr. Ranallo, if you would be so kind as to pass out 3, 4 and 5 which are the complaint in Sunlust v. Nguyen, First Time Video. Here is Sunlust v. Nguyen. That is Middle District, Florida. We also have First Time Videos v. Paul Uphold and Openmind Solutions v. Barry Wolfson.
MR. WAXLER: Your Honor, I would object to the introduction of those exhibits.
THE COURT: Right. We don't need this. We have
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109
1 basically got his testimony.
2 MR. PIETZ: Fair enough.
3 THE COURT: And we have got the testimony on the 4 reason why, but I got to tell you, that doesn't sound
5 reasonable to me that you would be inviting telephone
6 calls, litigation in Florida on a case that you know
7 nothing about. How do you field these calls?
8 THE WITNESS: No, sir. I would pass the messages 9 on to the other attorneys. 10 THE COURT: Back to Florida?
11 THE WITNESS: Yes. I would pass the messages on 12 to them because, essentially, it was just easy for them
13 at that point. I was like their secretary essentially,
14 and that is the way that Prenda wanted to do it.
15 THE COURT: Why?
16 THE WITNESS: I don't know. I mean, they changed 17 the practice at some point where people were putting
18 their own e-mails, their own numbers, but I don't know
19 why that was the way it was structured originally.
20 And I don't know. I mean, I don't know who
21 had access to my e-mail either. So I don't know, like, I 22 have no idea if I was sent something or if someone else 23 read it.
24 Q BY MR. PIETZ: Did John Steele have access to your C) 25 e-mail? Meg
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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Case 2:12-cv-08333-ODW-JC Document 108-5 Filed 04/08/13 Page 110 o0f 119 Page ID
#:2511 110 1 He did. I don't know if he did throughout, but he 2 3 Q Would he routinely respond to e-mail inquiries at
4 the blgibbs@wefightpiracy.com aati eauvesse
5 A I never knew it because he didn't CC me on them, or 6 he didn't let me know he was doing them. But I believe
7 he did.
8 Q Did Paul Hansmeier have access to that e-mail
9 address?
10 A I think he had access. I have no idea whether he 11 used it or not.
12 Q How about Mr. Duffy, Paul Duffy, did he have access
13 to that e-mail account?
14 A I don't think so.
15 Q Mr. Gibbs, earlier, you testified that some things
16 were sent out with your signature stamped on there that 17 didn't have your approval. I would like to refer now -- 18 actually, before I venture any farther afield, I would
19 ask that the eouxe take judicial notice of the complaints 20 | I have just identified as Exhibits, I think, 15, 16 and 21 17.
22 In any event, moving on, now, to what has been 23 previously identified in this action as Exhibit X, ask
24 that it be admitted now as Exhibit 18.
25 Essentially, I would just like to ask you a
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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lil
1 question to confirm.
2 A Sure.
3 Q Is this the kind of letter you are talking about? 4 This was a demand letter sent in the Guava, St. Clair
5 County, Illinois case. I note that it is dated -- what 6 is the ute on it? January 30th. And it is,
7 essentially, a, you know, a demand letter. And then I
8 will go to the last page there. It has a pleading in
9 there. So, in any event, on the last page of the letter
10 itself, there is a stamped signature, what appears to be
11 a stamped signature that says Brett Gibbs. Is it your
12 testimony that this letter was sent out without your 13 authorization? ” 14 JA That is my testimony.
15 Q You had no knowledge whatsoever that this letter 16 was being sent out? 17 A No. Not with my name on it. I don't even
18 remember -- no one ever told me about this before I found
19 out. I actually found out through an opposing counsel
20 that contacted me and wrote me a letter saying,
21 basically, you know, you have nothing on my client, and 22 you communicate through me. So I was kind of confused, 23 but I eventually saw the letter, and it had my stamped
24 Signature on it.
Cy 25 Q Mr. Gibbs -- I will represent to the court that
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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112
1 this letter has been sent to over 300 Internet users
2 across the country. Have you done anything to correct
3 the fact that this letter went out with your signature on 4 it without your authorization? I note that it was filed 5 in late January.
6 A Yeah. I actually talked with Mark Lutz, and Mark 7 said, I said, Mark, do not send any of these letters out 8 anymore that are, you know, please contact me and let me 9 know what is happening before you send out these letters. 10 And the response from Mr. Lutz was I don't control those 11 types of things, you have to talk with Paul and John.
12 Q Fair enough. Mr. Gibbs, have you ever hired local
13 counsel for Prenda Law?
14 A Actually, the hiring, no, because the hiring
15 process was done by John Steele.
16 Q Are you familiar with an attorney in Florida named 17 Matthew Wasinger?
18 A Yes. Yes.
19 Q Are you aware of the fact that Mr. Wasinger
20 testified under oath in federal court in Florida at the 21 Suniust hearing that you hired him and that, as far as he 22 understood, you were a principal of Prenda law? Are you 23 aware of that, Mr. Gibbs?
24 MR. WAXLER: Objection, your Honor. It is
25 irrelevant. It is also hearsay.
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1 MR. PIETZ: I am asking Mr. Gibbs if he is aware 2 3 THE COURT: Sustained. I have got the picture. 4 And I appreciate it. Thank you. 5 MR. PIETZ: I will move along, your Honor. 6 THE COURT: Okay. To what? Give me a blueprint. 7 MR. PIETZ: Fair enough, your Honor. TI will
8 explain the broad strokes of the categories I have, and 9 whatever the court is interested in, we will move to 10 that. 11 In addition to a few more things about 12 Mr. Gibbs hiring, firing and even threatening local
13 counsel, I have evidence on him being delegated
14 independent authority to settle cases which he actually 15 concluded. Contrary to Mr. Gibbs' assertion which is a 16 little confusing in light of the fact that he says I
17 spoke to Mark Lutz, in any event, with respect to his
18 assertion that. he never had any direct client contact, I 19 have a number of documents which actually show -- some of 20 which are Mr. Gibbs' own prior words showing that, in
21 fact, at least according to him, he was communicating
22 back and forth with the client, whatever that means, and 23 my theory is that that may mean John Steele.
24 But in any event, beyond the direct client
(> 25 interaction, you know, I could ask Mr. Gibbs about his
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1 investigation in the case, about the petition, but those
2 are the broad strokes, your Honor. If the court has got 3 the picture, I don't need to necessarily get into all the 4 documents.
5 THE COURT: I do have the picture, and I know who 6 the client is. We have talked about the client, and the 7 client has been running everything. Yeah, I know who the 8 client is.
) MR. PIETZ: Very good.
10 COURT: Okay. Thank you.
11 Gentlemen. Mr. Brodsky, you look bored.
12 - BRODSKY: I am not bored, your Honor.
13 COURT: All right.
14 . WAXLER: We have no further questions, your
16 COURT: All right.
17 Unless anyone has anything else in terms of 18 evidence to offer, the matter will stand submitted. Ali 19 ene.
20 Thank you, sir. You may step down?
21 THE WITNESS: Thank you, your Honor.
22 THE COURT: Good luck to you.
23 All right. How about this, I will leave this 24 up to counsel, if you wish. If you would like to sum up
25 your position, you may do so at this time. It is not
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115
1 necessary. I am just making that offer.
2 MR. WAXLER: Thank you, your Honor for giving us
3 the opportunity to clear Mr. Gibbs' name, and what I
4 would like to add to the declarations that he has
5 submitted and the papers that we have submitted is that
6 Mr. Gibbs did not intend to disrespect this court or
7 disobey any orders of this court. Mr. Gibbs had no
8 knowledge that perhaps others may nave: knowingly or
9 unknowingly disregarded some orders of this court in 10 terms of the service of the knowledge of the October 17th de. order.
12 The order itself, you know, did not require
13 service on the ISP's, but that was what Mr. Gibbs wanted
14 to do. And that is the undisputed testimony here today 15 that that is what he wanted to do was to have those ISP's 16 notified of that. And he took no action whatsoever, your 17 Honor, to do discovery, formal discovery of those ISP's 18 or ask the ISP's to follow-up on the information
19 provided.
20 So Mr. Gibbs stands before you, your Honor, he 21 is I think we could. say humbled by this experience, and I 22 think he is regretful that he has perhaps been put in a 23 position where the court at least in the original OSC
24 made comments suggesting that he was a culpable party
25 here. And he is not, your Honor. And I hope you see it
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116
1 that way too.
2 And I thank you very much for your time.
3 Appreciate the opportunity you have given us to clear his 4 name.
5 THE COURT: Thank you, counsel.
6 Anything from this side? You don't have to.
7 MR. PIETZ: I will keep it very brief, your Honor. 8 I can appreciate that there may be more
9 parties, other people who are more culpable than
10 Mr. Gibbs with respect to what has occurred in these
11 cases. However, I think the assertion that Mr. Gibbs is
12 merely an independent contract attorney is simply not
13 credible. I would just simply leave it at this, there is
14 ample evidence showing that Mr. Gibbs was been involved 15 since day one or at least very shortly thereafter on a 16 key level exercising operational control over this
17 litigation on a national basis.
18 So while I am sympathetic that perhaps to a 19 certain extent, maybe there are other people more
20 culpable, I will just leave it that certainly there is 21 ample evidence showing that Mr. Gibbs indeed played a key 22 role in all of this.
23 Thank you, your Honor.
24 THE COURT: Okay. I just awe one question,
25 gentlemen. As a licensed attorney in this state,
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117
1 particularly when it is only your name’ on the pleadings,
2 don't you think you have some responsibility to assure
3 the accuracy of those pleadings? Or is it permissible
4 simply to go they told me to do so or the senior partner 5 said it is okay, it may not have sounded right to me, but 6 they said it was okay. Could you do that really?
7 MR. WAXLER: Your Honor, I am going to suggest
8 that is not what happened on a key issue.
9 THE COURT: Okay.
10 MR. WAXLER: On a key issue, the issue involving 11 Alan Coss, there was not one shred of information that 12 Alan Cooper wasn't Alan Cooper until Mr. Gottfried's
13 letter in November of 2012 at which point Mr. Gibbs
14 immediately questioned whether this was accurate or not. 15 | And the most important thing is that Mr. Gibbs filed no 16 further pleadings aGlag that time which purported to rely 17 on Mr. Cooper being the assignee of AF Holdings. And so 18 Mr. Gibbs reacted to the notion.
19 He investigated and he did nothing further on 20 it. He was assured that Alan Cooper was Alan Cooper, but 21 so he -- he did something other than said somebody told 22 me. And on the other issues, your Honor, these were not 23 examples of him relying on anybody else to do things that
24 were improper. He was doing discovery. He was doing
25 investigations. They were supervising him, but he was
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1 acting like a California lawyer doing what he thought in
2 his best judgment should be done as a California lawyer
3 in these cases.
4 THE COURT: Ail right.
5 MR. WAXLER: Thank you.
6 COURT: Thank you, counsel.
7 All right. Again, the matter stands 8 submitted. We are adjourned.
9 MR. WAXLER: Thank you, your Honor. 10 MR. PIET4: Thank you, your Honor.
11 (Proceedings concluded.)
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1 CERTIFICATE
4 I hereby certify that pursuant to Section 753, Title 28,
5 United States Code, the foregoing is a true and correct
6 transcript of the stenographically reported proceedings held 7 in the above-entitled matter and that the transcript page
8 format is in conformance with the- regulations of the
9 Judicial Conference of the United States.
10 Date: March 17, 2013
12 /s/ Katie Thibodeaux, CSR No. 9858, RPR, CRR
UNITED STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
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