Malibu Media vs Kelley and Charles Tashiro UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION No. 1:13-cv-00205-WTL-MJD Filed 05/18/15 REPORT AND RECOMMENDATION ON PLAINTIFF’S MOTION FOR SANCTIONS
Plaintiff Malibu Media is the copyright owner of various adult movies Defendants are a married couple Malibu is suing defendants for copyright infringement Western Digital Hard Drive USB Hard Drive ipad Hard Drive I have become aware of a drive that I was previously unaware of. Through her lawyer... It's my husband's drive. I've use BitTorrent to download adult films from several websites. I used the hard drive on December 22, 2013 XXX c Kelley Charles
Malibu is suing defendants for copyright infringement Western Digital Hard Drive USB Hard Drive ipad Hard Drive I have become aware of a drive that I was previously unaware of. Through her lawyer... It's my husband's drive. I've use BitTorrent to download adult films from several websites. I used the hard drive on December 22, 2013 XXX c Kelley Charles Kelley is named as a defendants before Charles UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA April 8, 2013 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA May 15, 2014 approx 1 year These two can't leave well enough alone
by the way... ... but this is not super-pertinent
What happens is: (Keep in mind that only Kelley is the defendant) 1. Kelley provides hard drives (for forensic analysis) But the night before... Charles was erasing data 2. Kelley says they have never gotten a DMCA letter
Kelley says they have never gotten a DMCA letter. (evidence of BitTorrent usage) We've sent seven DMCA notices I've searched plaintiff's website. I've used BitTorrent. But just for music.
he said it... ...now he's a defendant 4. Charles added as defendant
I have become aware of a drive that I was previously unaware of. Through her lawyer... It's my husband's drive.
I've use BitTorrent to download adult films from several websites. I used the hard drive on December 22, 2013
7. A hearing is scheduled scheduled for January 29, 2015 8. Charles plans to invoke his 5th Amendment right but so he gets his own lawyer and hearing is set for April 30, 2015
Charles objects to questions asked of Kelley Marital Privilege! 9. Charles stipulates that he deleted files and withheld drive #4 10. Plaintiff gets default judgment - result of Spoliation Perjury & In exchange for this he would not be question about his reasons.
Charles objects to questions asked of Kelley Marital Privilege! 9. Charles stipulates that he deleted files and withheld drive #4 10. Plaintiff gets default judgment - result of Spoliation Perjury & In exchange for this he would not be question about his reasons.
Here is what happened: false intentional material Exceptions Marital Privilege! ...made in confidence Only applies to communications Observation Does not apply to facts made by observation a b Does not apply when spouses are joint participants in a crime The judge expands this to civil cases
Charles pleads the 5th x The rule that adverse inferences may be drawn from Fifth Amendment silence in civil proceedings has been widely recognized by the circuit courts of appeals The judge finds bad faith
Kelly failed to investigate fail Q: Did you investigate whether your answers were truthful? A: No Q: You did not investigate? A: No Q: Did anyone investigate? A: No Q: Did you consult anyone besides your own memory? A: No 4 Charles' misconduct attributed to Kelley I ensure you that my responses are 100% accurate
Charles' misconduct attributed to Kelley I ensure you that my responses are 100% accurate Through her lawyer... I turned over the task of my husband the task of producing the requested documents. A party is liable for his agent’s discovery misconduct - whether that agent is an attorney, an employee or, as in this case, a family member x Adverse inference against Kelley based on Charles' silence PLUS Must establish a relationship of loyalty 1. Nature of the relationship 2. Degree of control over the witness 3. Compatibility of interests in the outcome 4. The role of the witness in the litigation Test yes yes yesye
Kelley agreed with Charles to hide the truth 5 Perjury Lies Lies Lies
Why did the court award default judgment? As an aside... But back to our couple...
prejudice to the opposing party 2 prejudice to the judicial system 3 deterrence and punishment in choosing between default and a lesser sanction, a court should consider: even worse only one option clearly Recommendation: Default Judgment