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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So this brings us to:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the meantime, NOBODY FILE ANYTHING PLZ MUST CATCH UP.