Tuesday, February 5, 2013

More Prenda Insanity: Lawyer Claims Defendant Erased Infringing Activity Using A Registry Cleaner, Citing A Single EHow Submission

from the BREAKING...-Gibbs-has-filed-a-motion-for-a-'bad-court-thingy' dept

Are you ready for some more fun courtesy of Prenda Law? While there are many copyright trolls wandering the judicial system, few have proven more entertaining than Prenda Law and its partners in unintentional levity, including AF Holdings, John Steele and superlawyer Brett Gibbs.

Brett Gibbs takes center stage (again) in an ongoing copyright infringement lawsuit that has been winding its way through the courts since May of last year. Once again, Gibbs felt he had found something resembling evidence on the defendant's (Joe Navasca) hard drive, and brought in some outside "expertise" to back up his claim of "spoliation." Specifically, Gibbs felt that a registry cleaner found on Navasca's hard drive was evidence that he had removed all traces of UTorrent and any downloaded files.

Navasca's lawyer fired a letter back challenging Gibbs' emergency motion to compel on the grounds that everything about the motion was severely ignorant.
The instant discovery dispute ultimately centers around a particular bit of software that the defendant had running on his computer – C-Cleaner. Plaintiff alleges, without any support other than an “EHow.com” user submission, that using C-Cleaner is “proof” that Defendant was destroying evidence.
Let's just pause for a moment in appreciation Gibbs' technical source, EHow. While it is generally a vast improvement over Yahoo! Answers, it's hardly the sort of place a lawyer should turn to for technical advice, especially when already over his head in a farcical legal battle, but especially when it's a single user's submission. I guess there's just no time to search for a second opinion when you're in Prenda Law. These holes won't dig themselves!

Navasca's lawyer, on the other hand, decided to quote an actual expert.
As described in the annexed declaration of a Certified Computer Examiner, C-Cleaner’s default functions (the only ones used by Defendant) do not permanently delete data, and only affect data that the average user does not even know exists.
CCleaner's own website describes what the utility does:
It removes unused files from your system - allowing Windows to run faster and freeing up valuable hard disk space. It also cleans traces of your online activities such as your Internet history. Additionally it contains a fully featured registry cleaner.
And here's how the actual Certified Computer Examiner describes CCleaner's functions under the penalty of perjury in a federal civil action, which Navasca's lawyer attached as Exhibit A.
9. CCleaner is not a “wiping program” and is not designed to “permanently remove information from a computer.” By default, CCleaner removes temporary internet files and other system files.

10. ...For the most part, these are files that the average user does not even know exist and cannot even be viewed by most users. None of the files CCleaner deletes would be within the scope of discovery requests or be considered ‘reasonably accessible’ under FRCP 26.

24. The mere existence of a program such as CCleaner is not sufficient to support an allegation that a party has engaged in inappropriate conduct or deliberately attempted to destroy information. I have examined hundreds of hard drives and many of those contained the CCleaner program...it can be considered a useful program.

25. ...I have worked on many other cases where different programs were used to eliminate data – programs specifically designed for this purpose such as “Evidence Eliminator”. Unlike CCleaner, Evidence Eliminator wipes the free space of the hard drive by default. And in all such cases, the programs had been uninstalled before I imaged the hard drive for examination.”
So, on the "strength" of a single EHow submission, Gibbs hoped to bypass any concerns about privilege or privacy, singling out Navasca as a copyright infringer covering his tracks with a program that a.) doesn't even perform that specific function and b.) that he had downloaded years before this suit was filed.

There's more, though. When asked for the name of someone impartial to perform the hard drive inspection, the plaintiff named Peter Hansmeier, an "individual with familial ties to Prenda Law and its predecessor in interest, Steele Hansmeier." Not only that, but Hansmeier has "ties to instant litigation." So much for "impartial."

Navasca's representative also pointed out that while the defendant was willing to have his drive inspected, he could hardly grant that same permission for everyone else in his household. As is pointed out in this rather scathing letter, most (if not all) e-discovery vendors require certification that the owner, or the court itself (via a subpoena) has granted this permission.

Three days later, Judge Vadas added to Prenda's woes, delivering a terse denial of Gibbs' motion to compel. After instructing Navasca to stop running CCleaner on his computer(s), Vadas delivers this bit of advice to Gibbs.
Furthermore, allegations of spoliation are extremely serious, and the court urges Plaintiff to review the facts very carefully before pursuing this avenue based solely on an eHow.com article. In particular, Plaintiff should review the expert declaration that Navasca filed with his letter brief, to fully understand the purpose and effect of CCleaner.
As if it weren't completely apparent by now, AF Holdings, Prenda Law and their personnel are grasping at straws, somehow hoping to fumble their way into a payday while simultaneously burning their collective reputations to the ground, salting the earth and setting fire to the salt.

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