EC v. DA: Housekeeping & a note about Our Dear Legume #notchilled

Disclaimer: These are my own views, and not the views of any other organization with which I might be associated.

So, the Case Management Conference happened on Monday, and there were a flurry of things posted on the docket. I’ll link to the information for those here, provide a little that didn’t show up on the public docket for whatever reason, and point out one or two tiny little things.

Here’s the new stuff that has appeared on the docket since my last post (as a note, Deirdre Saoirse Moen usually posts these with greater alacrity than I do; I tend to put them off if I think they’re boring.)

In preparation for the Case Management Conference, the parties filed the following:

  • Initial Disclosures: These are the Initial Disclosures of Ellora’s Cave. You can read more about initial disclosures here. Note that the docket lists initial disclosures filed by all plaintiffs. I’ve been told that the defendants filed initial disclosures as well, but those aren’t on the docket for some reason (more on this later).
  • A report of the parties on their planning meeting and consent to the exercise of the jurisdiction of a magistrate judge.

    These things are really mostly administrative. The only thing of remote interest in the two is this section in the report of the parties: “Defendant expects to file a motion for summary judgment after Plaintiff completes its discovery. Discovery shall be suspended while summary judgment motions are pending.”

    First, a note on the difference between a motion for summary judgment and a motion to dismiss, and those with legal training, don’t smack me because yes, I’m not going to go into full detail here.

    Motions to dismiss are generally made because a party believes the case is defective on the face of the complaint in some way (e.g., the court does not have jurisdiction, the statute of limitations has passed, or the person thinks that they’ve stated a claim, but in fact, the things that happened to them are just a bum rap, and not actionable at law). (It’s more complicated than that, but let’s just go with that.) (Obviously, there are other reasons than I’ve listed, but that’s the basic idea.)

    A motion for summary judgment is generally made because a party believes the case cannot be won on the basis of the evidence that has been compiled.

    By analogy: Imagine that you’re trying to figure out if a book falls in the genre of fiction labeled as a thriller. You can read the back of the book, and say, “Huh. This is a nonfiction biography of Desmond Tutu; it’s probably not a thriller.” Or you can read the book, and say, “Huh. This was not a fictional thriller; it was a biography of Desmond Tutu.” (There is nothing wrong with biographies of Desmond Tutu, but they are not fiction, and no matter how thrilling the subject matter, they also are not genre thrillers.)

    A motion to dismiss will happen when you don’t have to read the evidence to determine that there’s a serious problem. A motion for summary judgment happens when you have the evidence compiled, and you can look at it and say, “Look, this doesn’t add up to what they promised in the blurb.”

    So Jane is essentially saying that after Ellora’s Cave compiles all its evidence, she believes that she will be able to demonstrate that what they have doesn’t add up to what they promised in the blurb. If she can do this before she has to subpoena a bunch of people and spend even more money, all the better.

    What does this mean? Well… do I have to tell you that it doesn’t mean whatever random people claiming to be legal bloggers think that it means? I didn’t think so. It means that Jane hopes that EC will not be able to prove its case once it has conducted discovery. That’s what it means. We will see.

After the Case Management Conference, the judge filed the following:

So there you are. Boringness!

But here is one tiny thing of potential interest: the defendants’ witness list. It didn’t end up on the docket, but I’m posting it here. You’ll notice that they identify more people than the plaintiffs do, including a dear friend of ours. Or…something like a dear friend. You know.

@PubNT Twitter account

The Pub Net Twitter account has made a series of statements on Twitter since the outset of this case, that are with obvious knowledge of the case at hand.  The author behind this Twitter account will have additional information as to the operations of Ellora’s Cave.

Tina Engler

Tina Engler is the founder and head of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

Patty Marks

Patty Marks is the CEO of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

Susan Edwards

Susan Edwards, at all relevant times, was the COO of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

Raylene Gorlinksy

Raylene Gorlinksy is the Publisher of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

Whitney Mahlik

At all times relevant hereto, Whitney Mahlik was the Managing Editor of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave

Courtney Thomas

At all times relevant hereto, Courtney Thomas was the Chief Financial Officer of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.

So there you are: a list of the people who will be subpoenaed in due course.

Thank you, and good night.

14 thoughts on “EC v. DA: Housekeeping & a note about Our Dear Legume #notchilled”

  4. Thanks for these posts, particularly the procedural bits. It’s interesting to read how the Ohio Civil Procedure differs from the Civil Procedure we have here in Ontario. Judges in Ohio seem to be a lot more “hands on” at an early stage. For example, here we would not have to disclose our potential witresses until much later in the proceedings and certainly not before Discoveries, Look forward to your next post.

  7. While I’m saddened Jane is being put through this, I too grinned when I saw the defendants’ witness list. Can’t wait to see what they have to say, especially The Nut!

  9. The Nut is posting again. You’d think someone would have pointed out to her that she’s only digging her grave deeper and deeper. My favorite part was where she said she won’t testify if she’s subpoenaed. I hate to burst her little bubble, but federal judges don’t tend to react well to statements like that. If she’s subpoenaed and doesn’t appear, she’ll be in contempt of court.

  10. Failure to Appear Consequences

    Failure to Appear ConsequencesIf you’ve ever gotten a traffic ticket, been called for jury duty, or received any type of court order, then you probably noticed the court date listed on the document. Don’t remember scheduling it? That’s because you didn’t—unlike other appointments, court proceedings are determined by the court’s schedule, rather than yours. Therefore, even if the timing is inconvenient, you are expected to show up for the proceeding. Otherwise, you may face criminal charges for missing your court date, as well as numerous failure to appear consequences.

    It is against the law for a person to miss any type of courtroom proceeding, including a criminal hearing, civil trial, or jury duty. You can also be charged with failure to appear if you are called in as a witness for a trial and do not show up to testify in court.

    Depending on the circumstances of your case, failure to appear may be classified as a misdemeanor or felony charge. You could even be charged for contempt of court in some jurisdictions. Although the penalties for these charges vary based on the laws in your state, you may face hefty fines and even jail time.

    Leniency is not often given to those who do not comply with a scheduled court date. In fact, most judges take the crime very seriously, and are quick to impose harsh penalties for individuals who are found guilty of failing to appear in court. In most cases, the only way to avoid such consequences is to provide a justifiable reason for your absence—and mere forgetfulness is not a valid excuse!

    So just what are the consequences for missing a court date? That all depends on the original charges against you, but typically, the penalties for failing to appear for a criminal hearing are the most severe. For example, if you don’t show up for a DUI bench trial or DUI jury trial, a warrant may be issued for your arrest. You may even lose your driving privileges and serve time behind bars if you are found guilty.

    Failing to appear for a civil hearing or a proceeding in family court can also have serious consequences. Missing a scheduled family court date can lead to contempt of court charges and penalties such as jail time and fines.

    The failure to appear consequences for a civil court hearing are also severe. If you are the plaintiff in the case, or the person who filed the lawsuit originally, you can expect the case to be dismissed if you are not present for the event. On the other hand, if you are the defendant (the person who has been charged), you may face criminal penalties, including jail, fines, and a license suspension.

    Fortunately, with the right legal counsel, you may be able to reduce or even eliminate some of the consequences associated with a failure to appear charge. If, for example, your attorney can prove you had a valid reason for missing the proceeding, the judge may reschedule your court date without imposing any penalties.

  11. contempt of court
    n. there are essentially two types of contempt: a) being rude, disrespectful to the judge or other attorneys or causing a disturbance in the courtroom, particularly after being warned by the judge; b) willful failure to obey an order of the court. This latter can include failure to pay child support or alimony. The court’s power to punish for contempt (called “citing” one for contempt) includes fines and/or jail time (called “imposing sanctions”). Incarceration is generally just a threat and if imposed, usually brief. Since the judge has discretion to control the courtroom, contempt citations are generally not appealable unless the amount of fine or jail time is excessive. “Criminal contempt” involves contempt with the aim of obstruction of justice, such as threatening a judge or witness or disobeying an order to produce evidence.

  13. I’ve been following this case through Courtney’s Twitter account and sometimes I feel I am missing half of the argument. It may be that I am really just a reader and I have no vested interested in the outcome of the procedures (although I dislike the fact that Ellora’s Cave is wasting money on attorney fees to fight something I consider silly while it seems their editors, authors and cover artists are not getting paid). Also, I don’t know what happens in the romance blogosphere. I am mainly a fantasy reader and the only romance author I follow is Courtney because I find her novels quirky, fun and very cerebral (in a good way).

    I read this blogpost without reading the letter faxed by the Pubnt account first (big mistake) and I thought it was really mean spirited. Which I found odd, since Courtney may have a biting wit, but I’ve never before found her to be mean. Well, I clicked on the link to the fax letter and found myself chuckling a bit. I know nothing of legal procedures and legal jargon but I think that a bit of prudence in legal correspondence should be exercised. Calling someone a “vicious troll” on correspondence part of legal procedures seems a bit juvenile and rather silly. However, as I have said, I know nothing of legalese and I may be mistaken.

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