Discovery? This should be interesting (EC v DA)

25 Jan

Ellora's Cave sues Dear AuthorThere has been some movement in the vexatious defamation lawsuit Ellora’s Cave filed against Dear Author and Jane Litte back in late September. A new document, a report on a meeting of the parties to plan discovery, was filed with the court on January 22, 2015.

Hooray…or not?

Look at the dates here (hat tip to Deirdre Saoirse Moen, who is hosting this in her Dropbox)

Yes, folks, it’s been four months of the bullshit already, and we are going nowhere fast.

Ellora’s Cave has until July 15th 2015 to stall, drag their feet, and generally speaking, do nothing, before the court asks what the hold up is.

I wonder whether there are sanctions if the date comes around and plaintiffs have no discovery to show the court. And how many extensions (or whatever they are called in legalese) they can request before the court spanks them some more.

I’m hoping Courtney Milan will chime in to explain the legal differences between a motion to dismiss and a motion for summary judgement, but in the meantime, Ms Deirdre has this, with definitions from Wikipedia and hypothetical examples.

As I’m not the brightest bear on the planet, and as legalese is most obviously not English, I have to parse the following out bit by bit (this is from the bottom of page two and the top of page three):

(a) Describe the subject on which discovery is to be sought and extent of discovery:
The discovery is to be sought on the veracity of the statements in the blog, and whether the statements were made negligently or maliciously.

Who is seeking this discovery? Plaintiffs, Defendants, both?

Defendant expects to file a motion for summary judgement after Plaintiff completes its discovery.

So, JL/DA expect that discovery will show the suit has no merits and ask for the judge to say so, correct?

Discovery shall be suspended while summary judgement motions are pending.

Whose discovery? JL’s and DA’s?

Here’s why I’m confused.

If Ellora’s Cave is seeking discovery to prove that The Curious Case of Ellora’s Cave is defamatory…

then EC, Patty Marks and Tina Engler/Jaid Black would have to prove, with their own records–show their books, financials, etc in public–that what DA and JL said in the Curious Case post is substantially false.

There is no way EC can prove this, a) because a lot of what the post said is opinion drawn from public records, and opinion is inherently protected by the First Amendment, and b) because (my opinion here) shenanigans after the suit was brought appear to confirm most if not all that was inferred in the post. So, Janen’s opinion passed the “substantially true” requirement.

And so, DA and JL, knowing that if Ellora’s Cave indeed does produce its records, will show that everything in The Curious Case is substantially true, will ask the judge to say, “Yo, EC, wtf are you doing wasting the courts’ time?”

So the last “discovery” is indeed DA and JL…oh.

heh.

Now I understand this:

Courtney Milan on planning meeting Jan 23 2015

Anyone betting on the likelihood of EC “just getting summary judgement and going”? I’m putting it a minus ten myself, but I’m feeling conservative this morning.

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7 Responses to “Discovery? This should be interesting (EC v DA)”

  1. Deirdre 25/01/2015 at 4:15 PM #

    Courts can indeed impose sanctions for lack of prosecuting a case.

    I’m also hoping Courtney Milan will chime in on various things. I just posted that as a stopgap measure after the peanut said: “Summary judgement IS the actual term for a motion to dismiss the case without trial.”

    Uh, no, they’re different. Which pubby then went in and backfilled after my post. Heh.

    Who is seeking this discovery? Plaintiffs, Defendants, both?

    Both, but in different ways.

    So, JL/DA expect that discovery will show the suit has no merits and ask for the judge to say so, correct?

    That’s how I’m reading it.

    (re summary judgment/discovery) Whose discovery? JL’s and DA’s?

    Both, I’m guessing. In other words, until the ruling on the summary judgment is taken care of, no more discovery. That actually makes sense: if you win, then you didn’t need the discovery, right?

    So here’s a thing that my husband and I were discussing the other day, because he passed the CPA exam a long time ago and was working on earning his audit hours to become a CPA. He said that normally, an audit is about proving the various financial controls in a company, then picking various sampling methods to verify the amounts reported are accurate, then issue a professional opinion about the quality of the financial records.

    We discussed that that method wouldn’t work with the DA case, because she said “a set of authors” and there’s no way to disprove that without checking all authors. I have been emailed privately by an author who claims that that statement applies to them. Hence, that would make the statement true (assuming that what I was told is correct).

    So, here’s what I’m thinking: let’s say EC does their discovery and can’t prove squat. DA/JL file their respective MSJs and the case disappears before the far more expensive discovery involving DA/JL asking for all of EC’s relevant records.

    What bums me about that: we may never find out what the actual truth was about EC’s state of finances.

    • azteclady 25/01/2015 at 5:07 PM #

      let’s say EC does their discovery and can’t prove squat. DA/JL file their respective MSJs and the case disappears before the far more expensive discovery involving DA/JL asking for all of EC’s relevant records.

      What bums me about that: we may never find out what the actual truth was about EC’s state of finances.

      As you say, we would never know how much truth–other than substantial truth–there is to the DA blog post. But there’s a lot more to consider.

      One, would Jane get any money back? I’m pretty sure Randazza would ask for it, but how likely would it be that the court would grant it? And at this point–or rather, because we are talking once EC fails to prove defamation, which could be anywhere from August to next year, depending on whether or not the court grants EC extensions–most if not all of those $75K will be gone.

      Would EC even have the money to give, if the court ordered it? Having the money, would they actually give it? I have the feeling Brashear may still be waiting for the full settlement on her case–we don’t know because the settlement is confidential, but considering that one of the things Brashear alleged in her pretrial brief was, and I quote from here:

      The trial brief also asserts that Ellora’s Cave is diverting assets away from the company. First, by borrowing money through commercial lines of credit and loans in EC’s name and then transferring those loan funds to Engler, Marks, and others at substantially lower interest rates. Second, EC is paying above market rate rent to its landlord (who happens to be Tina Engler). For example, in 2009, the market rent is around $40,131, and EC was paying to Engler $97,200 in rent.

      considering this, plus all the no-shows, no-cooperation shenanigans EC pulled then, would a reasonable person think that EC paid the settlement in full and without even more drama?

      (Is there a recourse for one of the parties bound by a confidential settlement if the other party screws around with payment?)

      Two, how about all the authors and editors and artists who are still trying to get their money and/or rights from EC? How would dismissal or summary judgement affect them, if at all?

      Three, if the case is dismissed one way or another, what’s to stop EC, and PM and TE/JB to bring another vexatious defamation suit against the next person–author, editor, blogger, reader–who comments on hikinks and shenanigans?

      What if it’s dismissed without prejudice? If I understand it correctly, that means EC *could* bring suit against Jane, for the same post, again at a future date.

      Gah, so many questions.

  2. Deirdre 25/01/2015 at 5:50 PM #

    As for whether DA/Jane gets $ back, generally both sides are responsible for their expenses. In states with good anti-SLAPP legislation (neither Iowa nor Ohio have this), expenses are paid by the plaintiff if they lose.

    Would EC even have the money to give, if the court ordered it? Having the money, would they actually give it?

    My experience in far smaller cases: when you reach a settlement agreement, there’s a joint motion for dismissal that one side’s attorney keeps. When the amount is paid, the dismissal’s filed with the court. That is for settlements that have a one-off payment, which this one would most likely be.

    Therefore, I think we can assume Brashear’s settlement has been paid in full since there’s been no motion to re-open the case.

    would a reasonable person think that EC paid the settlement in full and without even more drama?

    All I know is that any post-ruling settlement drama isn’t reflected in the record. One can infer that it wasn’t court-worthy drama.

    Is there a recourse for one of the parties bound by a confidential settlement if the other party screws around with payment?

    I don’t know. This is legal nuance above my ken.

    Two, how about all the authors and editors and artists who are still trying to get their money and/or rights from EC? How would dismissal or summary judgement affect them, if at all?

    Probably not at all. Court cases are very narrow. It’s like stuff outside the boundaries of the case, except for relevant case law, doesn’t exist.

    The only way it could affect authors et al is if the costs of the case on EC/JJ’s side were prohibitive enough that they’d have to re-prioritize payment schedules.

    Three, if the case is dismissed one way or another, what’s to stop EC, and PM and TE/JB to bring another vexatious defamation suit against the next person–author, editor, blogger, reader–who comments on hikinks and shenanigans?

    Peanut has suggested this will happen. one two

    It’s past the deadline for adding parties to this case, so I don’t think TE (or any other bloggers or Twitterers) will be added to EC/JJ v. DA/JL.

    What I’ve long considered one of the worst scenarios: if JL relied on someone who was feeding misinformation deliberately, and that party then turned tables and started feeding EC/JJ info—seems not to be the case based upon the witness list. Everyone on the witness list was already a known person with information.

    What if it’s dismissed without prejudice? If I understand it correctly, that means EC *could* bring suit against Jane, for the same post, again at a future date.

    Exactly so.

    • azteclady 25/01/2015 at 6:03 PM #

      TiNut’s threats on how other parties (i.e., particularly authors speaking out on twitter) will be sued later on goes well with what a commenter–back in a 2007 thread at Karen’s–called “EC litigious nature” (paraphrasing).

      I sincerely doubt that Jane would have phrased the allegations of funky accounting and missing royalty and other payments based on one source; the Curious Case post specifically talks about “Many authors and other workers associated with the production of EC books (who) are afraid to speak out.”

Trackbacks/Pingbacks

  1. Karen Knows Best - 26/01/2015

    […] I parse it out over here. […]

  2. Instead of a TiNut, how about an audit? (EC v DA…sorta) | Her Hands, My Hands - 29/01/2015

    […] were talking about discovery earlier this week, and how interesting it would be for the court, and Jane, to have access to […]

  3. Guess who may be called in to testify? (EC v DA) | Her Hands, My Hands - 01/02/2015

    […] Courtney Milan has a new, brief post on the few developments in the EC v DA defamation case this past week, wherein she explains the differences between a motion to dismiss and a motion for summary judgement (this came up here). […]

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