“GOING TO TRIAL: GOOD!”

Malibu Media, LLC has been crashing and burning lately.

“GOING TO TRIAL: GOOD!”

In the Eastern District of Pennsylvania, a judge has forced plaintiff attorney Chris Fiore’s hand by forcing Malibu Media, LLC to move out of the “John Doe” phase and into the trial phase. (Malibu Media, LLC v. John Does 1-14, Case No. 2:12-cv-02084, Judge Baylson)

The funny part about this case is that Fiore appears to NOT want to go to trial. Looking at the docket, it looks as if he was trying to maneuver his way out of trial by not telling the ISPs that the judge has ordered deadlines forcing him to name and serve certain John Doe Defendants. The logic is that if the ISPs did not hand over the subscriber’s contact information, Malibu Media would be UNABLE to name and serve the defendants, and the case would be dismissed [to Malibu’s relief].

The judge apparently received word about this and he was not amused, especially because failing to notify the ISPs would be a direct violation of the judge’s 10/3 order forcing Fiore to do so. As a result, yesterday (10/17), Judge Baylson ordered that Malibu Media file a memo and certificate under oath as to whether he informed the ISPs of the court’s intentions to move forward. Should it surface that Malibu Media did not inform the ISPs of the court’s order, or, should Malibu Media fail to name and serve defendants within the judge’s timeline, the plaintiff may face stiff sanctions.

I have a difficult time not being amused by what I am reading in this case. All these months, plaintiff attorneys have screamed, “if you do not settle our claims against you, we will name you as a defendant in a case against you.” Yet here is a judge who is giving Malibu Media the opportunity to move forward against defendants in an expedited fashion, and I cannot help but to think they are squirming.

A “bellwether trial” is a trial which the court employs to determine the merits of the plaintiff’s claim against certain defendants. The logic is that if the plaintiff provides good evidence of copyright infringement, the court will allow that plaintiff the opportunity to sue many other John Doe Defendants in many other cases. However, if the court finds that there is some hidden weakness in Malibu Media’s bittorrent litigation / copyright trolling cases in general (e.g., if there is an insufficient amount of evidence collected when the so-called “infringer” downloaded Malibu Media’s content via bittorrent), then this trial will serve to kill off all of the other Malibu Media, LLC cases in the Eastern District of Pennsylvania.

STATUS UPDATE: Malibu Media, LLC has until OCTOBER 26TH, 2012 to name and serve the defendants. On NOVEMBER 1ST, 2012, 2:30 pm, there will be a recorded telephone conference (the results of which will be made public).