MALIBU MEDIA, LLC v. DOE

Filing 119

ENTRY - ON DEFENDANT'S MOTION FOR AN ORDER TO SHOW CAUSE; The Court does not find a basis to issue an order to show cause. Defendant's Motion for an Order to Show Cause [Dkt. 61] is DENIED. Signed by Magistrate Judge Mark J. Dinsmore on 5/9/2014. (CKM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MALIBU MEDIA, LLC,
Plaintiff,
vs.
KELLEY TASHIRO,
Defendant.

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No. 1:13-cv-00205-WTL-MJD

ENTRY ON DEFENDANT’S MOTION FOR AN ORDER TO SHOW CAUSE
This matter is before the Court on Defendant Kelley Tashiro’s Motion for an Order to
Show Cause as to why Plaintiff Malibu Media, LLC and attorney Paul Nicoletti should not be
sanctioned pursuant to 28 U.S.C. § 1927 and the Court’s Inherent Authority (“Motion”) [Dkt.
61]. For the reasons set forth below, the Motion is DENIED.
This motion was filed in conjunction with Defendant’s Motion to Bar Testimony of IPP
International UG (“Motion to Bar Testimony”) [Dkt. 58] and support for the allegations in the
present Motion are found in the Defendant’s brief in support of the Motion to Bar Testimony
[Dkt. 60]. However, Defendant withdrew her Motion to Bar Testimony and no reply brief was
submitted in support of either the present Motion or the Motion to Bar Testimony.
In both motions, Defendant asserts that Plaintiff’s attorney, Paul Nicoletti, is 1) either
paying a fact witness or allowing a fact witness to be paid or; 2) paying an expert witness a
contingency fee, allowing an expert witness to be paid a contingency fee, or sharing in his fee by
way of an oral contingency fee agreement; and 3) has violated Indiana Rule of Professional
Conduct 3.3(b) by failing to disclose to this Court that IPP International U.G. (“IPP”) was
unlawfully operating as a private investigator in the State of Indiana. [Dkt. 58, 61.] The Court

will consider Defendant’s brief in support of her Motion to Bar Testimony [Dkt. 60] for support
of the allegations in the present Motion.
In short, Defendant argues that Plaintiff should be sanctioned for allegedly paying IPP to
be a witness.1 Plaintiff argues that it has never paid anyone to be a witness and the fee
arrangement with IPP is for its data collection services, which is neither unethical nor illegal.
Further, Plaintiff argues that IPP will not be testifying, but its employee Tobias Fieser will be.
However, neither Plaintiff nor Nicoletti will be paying Fieser to testify.
Defendant has not offered any evidence that Plaintiff is paying IPP for anything but data
collection services used to gather information on Defendant to demonstrate infringement.
Defendant’s argument relies upon Plaintiff’s response to an interrogatory in which Plaintiff
stated
IPP, Ltd. is a fact witness who will testify that its technology detected that a person using
Defendant’s IP address was downloading and distributing Plaintiff’s copyrighted works.
IPP Ltd.’s technology is not capable of being manipulated by a human. With that as
background, IPP, Ltd. is entitled to an oral contingency fee agreement to a small portion
of the proceeds from the resolution of this case.
[Dkt. 60-1 at 1-2.] Based upon this response to an interrogatory, Defendant has made the
inference that the contingent fee arrangement is for the testimony IPP will give and not for any
other purpose. The Court is not convinced that such an inference is justified. As Plaintiff
explained in its response brief, the fee paid to IPP is for the collection of data and not for IPP to
testify as a witness. Defendant did not challenge this assertion as she did not file a reply brief to
either the present Motion or the Motion to Bar Testimony [Dkt. 58]. The fact that Defendant
withdrew her Motion to Bar Testimony, which was the basis for her motion for sanctions, calls
into question Defendant’s continued belief in the viability of her motion for sanctions.

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The Court will not address whether IPP is a fact or expert witness at this juncture.

2

With regard to the allegation that Mr. Nicoletti should have disclosed to the Court that
IPP’s investigation was conducted in violation of Indiana’s Private Investigator laws, Defendant
has not shown that IPP has committed any crime. The mere fact that IPP is not licensed in
Indiana does not by itself prove that the information gathered related to Defendant was done in
violation of Indiana law. Because there is no evidence before the Court to demonstrate the
existence of any criminal or fraudulent conduct related to this proceeding, it is axiomatic that
there is no evidence of Mr. Nicoletti’s “knowledge” of such conduct, as would be required to
invoke the ethical rule in question. Ind. R. Prof. Cond. 3.3(b). As such, the Court does not find a
basis to issue an order to show cause. Accordingly, Defendant’s Motion for an Order to Show
Cause [Dkt. 61] is DENIED.
05/09/2014
Date: _____________
Mark J. Dinsmore
United States Magistrate Judge
Southern District of Indiana

Distribution:
Paul J. Nicoletti
NICOLETTI & ASSOCIATES, P.C.
[e-mail]
Jonathan LA Phillips
SHAY KEPPLE PHILLIPS, LTD
[e-mail]

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