Gordon v. DreamWorks Animation SKG, Inc. et al

Filing 39

Opposition re 34 Emergency MOTION for Protective Order and Sanctions filed by DreamWorks Animation LLC, DreamWorks Animation SKG, Inc., Paramount Pictures Corporation. (Shope, John)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

JAYME GORDON,
Plaintiff,
v.
DREAMWORKS ANIMATION SKG,
INC., DREAMWORKS ANIMATION
LLC, and PARAMOUNT PICTURES
CORP.,
Defendants.

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Civil Action No. 1:11-cv-10255-JLT

DEFENDANTS’ MEMORANDUM IN OPPOSITION
TO PLAINTIFF’S MOTION FOR PROTECTIVE ORDER

David Grossman
LOEB & LOEB LLP
10100 Santa Monica Blvd.
Suite 2200
Los Angeles, California 90067
[phone]
Jonathan Zavin
LOEB & LOEB LLP
345 Park Avenue
New York, NY 10154
[phone]

John A. Shope
Julia Huston
David A. Kluft
FOLEY HOAG LLP
155 Seaport Boulevard
Boston, Massachusetts 02210
[phone]

Table of Contents
Introduction ..................................................................................................................................... 1 
Background ..................................................................................................................................... 5 
A. 

Plaintiff’s Complaint Alleges That He Sent A Package Of His Work To
DreamWorks, But No Such Package Exists. ...........................................................6 

B. 

Plaintiff Admits Destroying The Computer(s) On Which He Created The
Allegedly Infringed Work After Deciding To Pursue A Claim. ..............................7 

C. 

Plaintiff Registered the Material He Claims Was Infringed Only After He
Was Aware Of The Kung Fu Panda Film. ..............................................................8 

D. 

Plaintiff Doctored A Photograph In His Complaint (And In This Motion) To
Bolster His Claim. ....................................................................................................8 
1. 

Plaintiff’s Image Was Never Disclosed to Defendants............................9 

2. 

Plaintiff Has Deceptively Altered The Image Of Kung Fu Panda
That Was Included In The Complaint And This Motion.......................9 

E. 

The Claim Could Not Have Any Merit Because There Exists Overwhelming
Evidence Of Independent Creation By DreamWorks. ...........................................10 

F. 

Based On The Dubious Nature Of Gordon’s Claims And His Admitted
Misdating Of His Own Material And Destruction Of Critical Evidence, The
Defendants Investigated Gordon............................................................................11 

Argument ...................................................................................................................................... 12 
A. 

Plaintiff’s Motion Is Not Supported By Any Evidence. ........................................12 

B. 

No Violation Of The Criminal Witness Intimidation Statute Occurred. ...............13 

C. 

No Violation Of Massachusetts Rules Of Professional Conduct Occurred. ..........14 

D. 

The Relief Requested Is Inappropriate And Unprecedented. ................................16 

Conclusion .................................................................................................................................... 17 

Introduction
Plaintiff’s Emergency Motion for Protective Order and Sanctions is legally flawed and
premised on unfounded and demonstrably false allegations, and should be denied. Although this
motion should be rejected due to the fact that Plaintiff has failed to establish the existence of
even a single improper act by anyone, or even to present an affidavit or other evidence of such
an act, due to the serious nature of the accusations made against Defendants and their counsel,
they submit herewith the affidavits of John A. Shope and David Grossman, and this
memorandum, to assure the Court that the deficiencies of Plaintiff’s papers run far deeper than
their lack of any evidence. Plaintiff falsely accuses Defendants’ counsel of ethical and even
criminal misconduct and demands that sanctions be imposed, that protected work product be
disclosed, that counsel be prohibited from further investigating Plaintiff, that the jury be
presented with irrelevant and inadmissible evidence, and that one of Defendants’ attorneys have
his admission pro hac vice revoked. None of these requests are warranted and there is absolutely
no basis for any of the requested relief. Simply put, there has been no “harassment” or
“intimidation” of Plaintiff or his family, no “interrogations” of anyone, no violations of any
statute or rule, no unlawful acts or omissions, and no litigation abuse or other improper conduct
or intent by Defendants or their counsel.1 The true purpose of the motion appears to be to divert
attention from the fact that plaintiff Jayme Gordon now admits to having misstated the critical
dates on which he created the works that he alleges have been illegally copied, appears to have
fabricated those drawings after the DreamWorks film was created and publicized, and admittedly

As discussed in Defendants’ Motion to Dismiss (Dkt. No. #36-38), Plaintiff had no good faith
basis for his intentional refusal to appear at his long-scheduled deposition. Apart from its lack of
any factual or legal basis, the request for a protective order relates to issues that have no bearing
on Plaintiff’s ability to testify under oath. Plaintiff’s motion appears to be nothing more than a
pretextual gambit designed to prejudice the Court against Defendants before the Court was
informed of Plaintiff’s misconduct in this litigation and to further delay his deposition in hopes
of obtaining the Defendants’ work product that could assist Plaintiff’s counsel in preparing for
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discarded the computer and destroyed the electronic files that, upon forensic examination, would
permit the Defendants to prove such a fabrication.
As set forth in Defendants’ Motion to Dismiss, Defendants had – and continue to have –
every reason to believe this lawsuit is a complete scam. Plaintiff filed his Complaint without
warning almost three years after Kung Fu Panda was first released. Further, the Complaint is
inherently dubious due to its bizarre and speculative theories of how DreamWorks might have
had access to anything created by plaintiff Jayme Gordon, its material allegations made solely on
information and belief, and the suspicious timing of the copyright registrations of Plaintiff’s
unpublished works, many years after they were supposedly created but admittedly after Gordon
learned of the forthcoming DreamWorks film. Finally, there is an enormous body of evidence,
gathered in DreamWorks’ successful defense of a suit by another claimant who also falsely
alleged that he, and not DreamWorks, had conceived the characters and stories in Kung Fu
Panda, all establishing that the film was independently created by scores of DreamWorks
personnel over a period of many years. Plaintiff’s case is completely meritless and Plaintiff
cannot prevail. Over the past four months, however, Defendants have uncovered several aspects
of this case that make it not merely meritless, but brought in bad faith.
To establish access, Gordon alleges that he sent his works to Disney (which, he
speculates, were then secretly taken to DreamWorks and not used for almost eight years) and
DreamWorks (in an attempted unsolicited submission which his documents show was rejected)
and that he briefly put some of them on his websites. Amended Complaint ¶¶ 48-62. Thus, there
were several fairly obvious questions that should have been answered upon receipt of Plaintiff’s
required document production: What did Plaintiff actually send to Disney? What was in the
unsolicited material that Plaintiff allegedly sent to DreamWorks in 1999? When did the Plaintiff

their client’s deposition.
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actually create the electronic files that made up much of his copyright registrations in 2008 and
2011 (after he was admittedly aware of Kung Fu Panda and its characters and stories)? How
much of his purported “Kung Fu Panda Power Work” was actually available on his websites?
However, only the last question was answered by Plaintiff’s documents – and the answer to that
question was that despite the allegations in the Complaint, there was nothing about “Kung Fu
Panda Power” on his websites.2
In fact, Plaintiff had no documentary evidence as to what, if anything, he sent to
Disney or DreamWorks and he did not produce any of the electronic files associated with
his 2008 and 2011 copyright registrations. Furthermore, his attorneys admitted in a
supplemental filing with the Copyright Office that some of Gordon’s allegedly infringed
work was not completed in 1999, as he had originally represented, but not until 2008 ̶
after the DreamWorks film had been created and publicized. Unsurprisingly, Defendants
requested a forensic examination of the computer that Gordon had admittedly used in
creating the material in part to determine whether Gordon had fabricated his drawings
after learning of the DreamWorks film. After a series of inconsistent and implausible
assertions,3 Plaintiff’s counsel eventually admitted that Plaintiff destroyed all of the
electronic evidence that relates to his allegedly infringed works entitled either “Kung Fu

Because Plaintiff registered the hard and electronic copies of the materials he put online in
1999/2000, Plaintiff produced the Copyright Office’s deposit copy of his websites as they existed
at that time to Defendants. There is nothing in this collection of works that could possibly be the
basis of any claim of infringement in this case. While there were drawings of Pandas on the
website, they were very different than the works that Plaintiff claims were infringed in this case.
2

The contradictory representations made by counsel regarding Plaintiff and his records and
computers strongly suggest that Plaintiff has not been forthcoming with his own counsel. On
numerous occasions Plaintiff’s counsel has firmly asserted that Plaintiff has produced all of his
files, yet additional highly relevant documents have been subsequently produced without
explanation, including as recently as October 19, 2011 (i.e., after this motion was filed). This
belated production of critical (but damaging) documents is yet more evidence that the present
motion is pretextual, and was filed only to further delay Plaintiff’s deposition.

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Panda Power” or “Five Fists of Fury” and that he discarded his computer and all of his computer
files after he created electronic documents and images that are the heart of his lawsuit, after he
was aware of Kung Fu Panda, and after he registered his own supposedly infringed works with
the Copyright Office in 2008 and 2011. Put simply, Plaintiff registered his works in anticipation
of filing this lawsuit and then destroyed this highly material evidence before Defendants could
evaluate it.
Because he has destroyed this evidence, Gordon himself is now the sole source of
evidentiary support for the prima facie element of what, if anything, he purportedly sent to
Disney or DreamWorks. Given the dubious nature of Plaintiff’s claim on its face and in light of
the overwhelming evidence of independent creation of Kung Fu Panda, his destruction of highly
material evidence and the incomprehensible explanations that his counsel has provided for his
actions, Defendants had legitimate questions regarding whether Gordon’s claims were not
merely meritless but also fraudulent.
Based on these serious concerns, and as set forth in the accompanying Affidavit of John
A. Shope, Defendants’ counsel conducted a background investigation of Plaintiff. This
investigation had no improper purpose and was intended solely to determine whether the
Plaintiff had a history of fraud, and to attempt to verify the truth (or lack thereof) of various
allegations in the Complaint. Plaintiff was the sole focus of the investigation and the individuals
that were interviewed did so voluntarily and did not include any of Plaintiff’s family members.
Among other things, Defendants discovered that Plaintiff has a criminal conviction, has had a
restraining order entered against him, and has asserted multiple civil claims for injury to his
person or property in which fraud has been suggested. The investigation also sought to
determine, among other things, whether Plaintiff was actually a professional artist (as he alleged
in his Complaint) despite the absence of any known licenses to others of his work, and whether

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Plaintiff had been or was involved in other scams. The investigation was lawful and appropriate,
and Plaintiff has not submitted any evidence to the contrary.
Aside from being factually and legally without merit, the primary relief sought – a
cessation of the observation of Plaintiff – is completely moot because, as Plaintiff’s counsel was
specifically informed before the present motion was filed, the observation of Plaintiff concluded
weeks before the date scheduled for his deposition.
Background
The Complaint in this matter was filed and served on or about February 16, 2011. The
initial scheduling conference was held on August 17, 2011. Pursuant to the Court’s rules, both
Plaintiff and Defendants produced relevant documents before that date. Following those initial
document productions, each side has produced further documents at the request of the other side,
where the requesting party thought that some relevant documents may have been omitted from
the initial production. Grossman Aff., ¶ 3. On August 18, Defendants noticed Plaintiff’s
deposition for September 22, more than one month in advance. Id., ¶ 5. Despite the fact that
Plaintiff is represented by eight attorneys, Plaintiff’s counsel informed Defendants that they had
conflicts until October 19. Id. On this basis, the deposition was rescheduled for that date.
Based initially on the complete improbability of the allegations in the Complaint, and
subsequently on (1) the failure of Plaintiff to produce documents that it appeared from his
Complaint would have to exist, (2) the conflicting representations made by Plaintiff’s counsel
regarding the existence of computers alleged to have been used in creating the allegedly
infringed works, (3) the suspicious timing of Plaintiff’s copyright registrations many years after
they were supposedly created, (4) the Plaintiff’s admission to the Copyright Office that he had
misstated the date on which he had completed the works on which he based his claim as 1999
when it was actually 2008; and (5) the apparent doctoring, as discussed below, of an image by

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Plaintiff in his Complaint (and in the present motion), this lawsuit had and has all of the indicia
of a scam. Defendants accordingly decided that a standard background investigation of the
Plaintiff was warranted. The details of each of these obvious problems with Plaintiff’s pursuing
of this claim are as follows:
A.

Plaintiff’s Complaint Alleges That He Sent A Package Of His Work To
DreamWorks, But No Such Package Exists.

In an attempt to satisfy the element of access, Plaintiff claims that in 1999 he submitted
an unsolicited package to DreamWorks that contained “a number of his illustrated works,
including [his] Kung Fu Panda Power Work,” which allegedly included the “drawings,
illustrations, characters, character attributes, literary text, and artistic expression embodied
within” his purported work entitled Kung Fu Panda Power. Amended Complaint, ¶¶ 5, 60.
Plaintiff, however, did not produce any letter to DreamWorks, nor did he produce any copies of
what purported to be enclosed with his submission. Grossman Aff., ¶ 6. He did, however,
produce a copy of a responsive letter sent to him by DreamWorks, and that letter clearly
informed Gordon that DreamWorks does not accept unsolicited materials and was declining his
“request to submit” something to DreamWorks. Grossman Aff., Ex. A. The letter itself seems
to indicate that no material was actually sent to DreamWorks, only that Plaintiff had requested
the opportunity to submit an undescribed project: “Although we appreciate your interest, our
company policy strictly prohibits our consideration of any unsolicited material. We generate our
projects internally, and therefore we must decline your request to submit your proposed project.”
Id. Plaintiff’s own records irrefutably establish that he has no documentation to support his
claim that he sent his Kung Fu Panda Power Work to DreamWorks, and that DreamWorks was
unwilling to accept whatever it was that he wanted to submit.

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B.

Plaintiff Admits Destroying The Computer(s) On Which He Created The
Allegedly Infringed Work After Deciding To Pursue A Claim.

After reviewing Plaintiff’s initial document production, the Defendants realized that there
were numerous inconsistencies in the drawings that suggested that some or all of them had not
been created on the dates Gordon ascribed to them. (As noted, Gordon had admitted misdating
some of his materials.) Accordingly, before the initial scheduling conference, Defendants
requested a forensic examination of Gordon’s computer. Grossman Aff., Ex. B. Defendants
believed that an examination of the electronic files that Gordon purportedly created would be
crucial to determining when the unpublished purported “Kung Fu Panda Power” work was
actually created. That such electronic files should have existed is clear: Plaintiff’s artwork
would necessarily have been included in computer files that he allegedly placed on his website
between 1999 and 2001, the Amended Complaint (¶ 68) specifically alleged that he created other
electronic art using Microsoft Photoshop, and the vast majority of the documents that he
registered in 2008 and 2011 were digitally created (including those with purported creation dates
as early as 1992). Plaintiff’s counsel did not respond and say “no such computer exists” –
instead Plaintiff’s counsel agreed to the requested forensic examination. Id., Ex. C.
However, Plaintiff’s counsel subsequently stated that Plaintiff did not have a computer.
Defendants’ counsel contacted Plaintiff’s counsel and pointed out the dubious nature of that
assertion. Grossman Aff., ¶ 11. It was only after being confronted with the facts that Plaintiff
operated multiple websites, maintained multiple email addresses, and created digital art files that
Plaintiff’s counsel acknowledged that, contrary to the prior unequivocal statement, Plaintiff
actually has two computers. Id., ¶ 12.
At that point, however, Plaintiff’s counsel asserted that Gordon’s computers had been
acquired only recently and contained no relevant information, and that all relevant electronic
files had been destroyed by Gordon, presumably after his 2008 and/or 2011 copyright

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registrations, when he was already planning on making a claim against Defendants. Grossman
Aff., ¶ 12. Given Defendants’ concerns, they reiterated their request that Plaintiff produce his
computer(s) for forensic imaging – and as Plaintiff’s counsel had previously agreed to allow.
Grossman Aff, Ex. D. Plaintiff’s counsel has nevertheless refused to provide these computers
for examination.
C.

Plaintiff Registered the Material He Claims Was Infringed Only After He
Was Aware Of The Kung Fu Panda Film.

The material that Plaintiff claims that the Defendants copied in their film was registered
for copyright by Plaintiff in 2008 and in 2011, well after the DreamWorks film had been created.
Although Kung Fu Panda was not widely released until June of 2008, it was first announced in
2002 and massive advance publicity began in late 2007. This included the widespread
dissemination of trailers containing images of all of the main characters and much of the basic
storyline. Plaintiffs’ counsel has conceded that Gordon, at the very least, “viewed a trailer of the
‘Kung Fu Panda’ film before filing his 2008 copyright registration.” Shope Aff. Ex. B (letter
from K. McCallion dated August 30, 2011). Thus Plaintiff’s “evidence” of the existence of
much of what he claims was copied by Defendants dates from a time after he was aware of
Defendants’ film – and of course, the Plaintiff has conveniently destroyed the electronic files that
might have shown when this material evidence was really created.
D.

Plaintiff Doctored A Photograph In His Complaint (And In This Motion) To
Bolster His Claim.

The Complaint, Amended Complaint and this Motion all highlight a purported
comparison of Plaintiff’s work and Kung Fu Panda in the images set forth below. Plaintiff is
fully aware that any implication that one work was copied from the other is false and is
contradicted by incontrovertible evidence. Nevertheless, this intentionally misleading
comparison has been repeatedly submitted in Plaintiff’s pleadings.

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1.

Plaintiff’s Image Was Never Disclosed to Defendants.

The image on the left is Plaintiff’s unpublished work that Plaintiff knows was never
disclosed to Defendants or the general public. As noted, Plaintiff asserts that Defendants had
access to this work under three theories: (1) his alleged submission to Disney, which he
speculates might have found its way to DreamWorks, Cmplt. ¶¶ 48-58; (2) an unsolicited
submission that he allegedly made to DreamWorks in 1999; and (3) his websites in 1999/2000.
However, even taking Plaintiff’s claim as to when this document was created as true, Plaintiff’s
documents and representations of his counsel only establish that: (1) this unpublished image was
created a year after his 1992 submission to Disney; (2) DreamWorks rejected Plaintiffs’ request
to submit materials; and (3) this unpublished image was never on Plaintiff’s websites. As a
result, Plaintiff’s unpublished image was never disclosed to Defendants and could not have been
copied by anyone associated with Kung Fu Panda.
2.

Plaintiff Has Deceptively Altered The Image Of Kung Fu Panda That
Was Included In The Complaint And This Motion.

Having reviewed the publicly available materials associated with the film and upon closer
inspection of the image in the Complaint, it is clear that the purported image that Plaintiff claims
is “strikingly similar” to his own unpublished sketch was deliberately doctored by Plaintiff. The
original image that DreamWorks used for marketing purposes, well after the characters had been
created, is below.

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By intentionally manipulating this image to delete dissimilar elements in the
DreamWorks material, Plaintiff attempted to create a perceived similarity between a rudimentary
sketch – which was never published anywhere – and two of Defendants’ Kung Fu Panda
characters.4

E.

The Claim Could Not Have Any Merit Because There Exists Overwhelming
Evidence Of Independent Creation By DreamWorks.

Coincidentally, Defendants were sued in 2010 in Los Angeles by a different plaintiff, one
Terence Dunn, who also claimed that the main ideas and characters in the film Kung Fu Panda
were stolen from him. In the course of that litigation (which ended with a jury verdict in favor of
Defendants in July 2011), DreamWorks examined and produced scores of thousands of
documents regarding the creation of the film, and obtained depositions and sworn testimony
from the many creators of the film. Grossman Aff., ¶¶ 2-4. All of that evidence showed that the
film had been independently created by DreamWorks and by independent writers and artists
The claim that the two characters displayed above were copied by DreamWorks is also false
because, as Plaintiff has seen in incontrovertible documents that were produced by DreamWorks
months ago, the two Kung Fu Panda characters were independently created by different
DreamWorks writers in different years.

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hired by DreamWorks. There was no evidence whatever of any awareness much less use of any
work by Gordon. Id. ¶ 2. Because the elements in the film that Gordon claims were copied from
him were created by numerous different people over the course of three or four years, Gordon’s
theories of access and copying would implausibly require a massive conspiracy by numerous
DreamWorks employees as well as third parties to steal his material incrementally over several
years.
F.

Based On The Dubious Nature Of Gordon’s Claims And His Admitted
Misdating Of His Own Material And Destruction Of Critical Evidence, The
Defendants Investigated Gordon.

Based on the dubious nature of this lawsuit on its face, the clear and irrefutable evidence
of the independent creation of Kung Fu Panda, Gordon’s admitted misdating of drawings on
which he bases his case, inconsistencies in those drawings suggesting fabrication, the
inconsistent and implausible representations of his counsel, and his admitted destruction of
material evidence after deciding to pursue a claim, Defendants conducted a background
investigation of Plaintiff. The investigation was proper and lawful in every respect and there is
no evidence to the contrary. Shope Aff., ¶¶ 14-15. There were no communications with Plaintiff
or his family. Id., ¶ 16. The background check and investigation was supervised by Defendants’
Boston counsel, and involved the engagement of a reputable professional firm both run by a
former FBI agent and licensed as a private detective company. Id., ¶¶3-4. The investigation
revealed, among other things, that Gordon had been criminally convicted of assault, that he had
been subject to a restraining order, and that he had filed previous civil suits asserting claims of
damage to his person and property that were suspected of being fraudulent or inflated. Id. ¶ 12.
Although Plaintiff’s counsel was advised that the observation to which they now object had
concluded weeks earlier, the present motion nonetheless followed at 7:03 p.m. on October 18,
2011, the day before Gordon was scheduled to be deposed.

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Argument
A. Plaintiff’s Motion Is Not Supported By Any Evidence.
As the moving party, Plaintiff bears the burden of showing good cause for a protective
order. Multi-Core, Inc. v. Southern Water Treatment Co., 139 F.R.D. 262, 263 (D. Mass. 1991)
(Bowler, M.J.) (denying motion for protective order), citing, Public Citizens v. Liggett Group,
Inc., 858 F. 2d 775, 789 (1st Cir. 1988). Plaintiff is required to prove that the “true purpose” of
Defendants’ conduct was to “annoy, embarrass, or oppress, or that there is no prospect that it will
lead to the discovery of relevant evidence.” McCarron v. J.P. Morgan Sec., Inc., 2008 U.S. Dist.
LEXIS 40059 at *7 (D. Mass. 2008) (Stearns, J.) (denying motion for protective order).
“Naked assertions” by attorneys are not sufficient to meet this burden. Dalmady v. Price
Waterhouse & Co., 62 F.R.D. 157, 159 (D. P.R. 1973) (refusing to decide motion for protective
order to postpone deposition where motion was not accompanied by an affidavit). Rather, “well
prepared and complete affidavits . . . are necessary to corroborate and give substance to his
attorneys’ assertions.” Id. For example, in Littman v. Walgreen Eastern Co., Inc., 1998 U.S.
Dist. LEXIS 18422 at *6 (D. Mass. 1998) (Neiman, M.J.), where plaintiff moved for a protective
order to cancel her deposition, the Court denied the motion because it was not accompanied by a
sworn affidavit detailing the facts supposedly giving rise to the need for the order. Here the only
affidavit, that of Ms. McCallion, does not swear to facts, but merely attaches correspondence
between counsel (and a brief video purportedly filmed by Gordon, which simply shows Gordon
chasing someone).
Plaintiff’s counsel’s arguments and implications regarding “harassment” and
“intimidation” are not evidence. The extremely brief and likely highly edited video shows what
purports to be the Plaintiff in pursuit of an investigator, not the reverse as might be supposed in
the motion. Considering the drastic and unprecedented relief sought, some evidence would have

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been expected, but none was provided. That failure speaks volumes about the true intention of
the present motion, which appears to have been simply a maneuver to delay Plaintiff’s
deposition, to prejudice Defendants’ counsel with this Court, and to obtain protected work
product in the hope that Mr. Gordon can evade being caught in further lies at his deposition.
B. No Violation Of The Criminal Witness Intimidation Statute Occurred.
Plaintiff has accused Defendants’ attorneys of committing a felony, namely intimidating
a witness in violation of Mass. Gen. Laws c. 268, § 13(B). The lack of evidentiary support for
this accusation has been compounded by Plaintiff’s complete inattention to the relevant case law,
and consequent failure even to allege the elements of such a charge. Those are that (1) the
person in question was to be a witness; (2) the defendant willfully (or perhaps with reckless
disregard under a 2010 amendment) attempted to influence the witness; (3) the defendant’s
actions took the form of intimidation, force, or threats of force; (4) the defendant did so with the
specific intent of influencing the individual as a witness. See Commonwealth v. Rivera, 76 Mass.
App. Ct. 530, 532-533 (2011); Commonwealth v. Drumgoole, 49 Mass. App. Ct. 87, 90, rev.
denied, 432 Mass. 1101 (2000). It is not sufficient merely for a defendant to have engaged in
acts that may be “inferentially hostile” from the witness’ point of view. Commonwealth v.
Drumgoole, 49 Mass. App. Ct. at 90 (a physical “bump” in a restaurant, unaccompanied by
words, was insufficient). Rather, the statute requires proof beyond a reasonable doubt that “the
defendant willfully engaged in intimidating conduct, that is, acts or words that would instill fear
in a reasonable person, and did so with the intent to impede or influence a potential witness’s
testimony.” Rivera, 76 Mass. App. Ct. at 534-535.
Gordon has submitted no such evidence. Nor has he even alleged that there was an
attempt to alter his testimony, or intimidate him to refrain from testifying. A Massachusetts
statute specifically authorizes the use of licensed private investigators to investigate personal

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character, employment, and associations as well as to gather evidence in civil cases. Mass. Gen.
Laws c. 147, §§ 22 et seq. A private investigation conducted in compliance with relevant
Massachusetts statutes and case law cannot as a matter of law “instill fear in a reasonable
person.” See Commonwealth v. Rivera, 76 Mass. App. Ct. at 532-533; Drumgoole, 49 Mass.
App. Ct. at 90; c.f. Joyce v. SCA, 1984 U.S. Dist. Lexis 21555 (D. Mass. 1984) (Mazzone, J.)
(noting actions of investigator who conducted surveillance and spoke to neighbors and relatives
would not be highly offensive to a reasonable person); Forster v. Manchester, 410 Pa. 192, 19798 (1963) (tailing of plaintiff, even after she detected surveillance and attempted evasive
maneuvers, not unreasonable in light of Pennsylvania analog to Massachusetts private
investigator statute) (cited with approval in Joyce); DiGirolamo v. D.P. Anderson & Associates,
Inc., 10 Mass. L. Rep. 137, 1999 Mass. Super. LEXIS 190 at *6 (Mass. Super. 1999) (Gants, J.)
(surveillance of plaintiff “perfectly appropriate”) (citing Forster); Figured v. Paralegal
Technical Services, Inc., 231 N.J. Super. 251, 255-256, appeal dismissed, 121 N.J. 666 (1989)
(conducting surveillance of litigant from parked car in front of house, staring at plaintiff as she
drove by, and following her in public places was reasonable); see also United States v. Medina,
41 F. Supp. 2d 38, 46 (D. Mass. 1999) (Gertner, J.) (rejecting as “absurd” a party’s interpretation
of a statute that would make criminal “the hiring by the defense of an investigator primarily to
gather documents or do surveillance”).
C. No Violation Of Massachusetts Rules Of Professional Conduct Occurred.
Plaintiff also asserts that the hiring of a private investigation firm by Defendants’
attorneys violated Mass. R. Prof. C. 4.4, 426 Mass. 1405 (1998) (providing that an attorney
“shall not use means that have no substantial purpose other than to embarrass, delay or burden a
third person, or use methods of obtaining evidence that violate the legal rights of such a person”),

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and Mass. R. Prof. Conduct 8.4(d), 425 Mass. 1429 (1998) (prohibiting “conduct that is
prejudicial to the administration of justice”).
That position has been rejected. In the Matter of Discipline of an Attorney, 442 Mass.
660 (2004). To the contrary, such activity may be required by an attorney’s duty to zealously
represent his or her client, id., a point that Plaintiff’s counsel recognize by their own frequent use
of private investigators in intellectual property cases for similar purposes.5 Defendants have not
located a single authority where conduct remotely related to that alleged by Gordon has given
rise to sanctions for professional misconduct.
In accordance with their professional obligations, Defendants’ attorneys, based on the
bizzare claims in the Complaint, and subsequently upon learning, among other things, that
Plaintiff may have fraudulently fabricated the creative work on which he bases his claims, and
with the knowledge that Plaintiff had admittedly destroyed (or was concealing) computer
evidence that might disclose as much, authorized an investigation to be performed by a licensed
professional investigation firm. See Shope Aff. ¶¶ 5-11; Mass. R. Prof. C. 1.3, 426 Mass. 1313
(1998) (a “lawyer should represent a client zealously within the bounds of the law”); Mass. R.
Prof. C. 1.1, 426 Mass. 1308 (1998) (“Competent representation requires the legal knowledge,
skill, thoroughness and preparation reasonably necessary for the representation”). In such

In all of the following cases, Plaintiff’s counsel used private investigators: Coach, Inc. v.
Angela's Boutique, 2011 U.S. Dist. LEXIS 65876 (S.D. Tex 2011) (investigator used pretext to
detect sale of allegedly counterfeit handbags in trademark infringement suit; Bose Corp. v.
Neher, 2010 U.S. Dist. LEXIS 143644, (D. Mass. 2010) (private investigator used to identify
sellers of headphones allegedly infringing plaintiff’s trademarks); Power-One, Inc. v. Artesyn
Techs., Inc., 2007 U.S. Dist. LEXIS 75685 (E.D. Tex. 2007) (private investigator used in patent
infringement case to track down former employees of alleged infringer); Dimension One Spas,
Inc. v. Coverplay, Inc., 2006 U.S. Dist. LEXIS 90838 (S.D. Cal. 2006) (use of private
investigator to locate inventors of preceding patent in infringement case); see also Wu v. Liberty
Life Assur. Co., 2006 U.S. Dist. LEXIS 35305 (W.D. Mich. 2006) (disability benefits); Rister v.
Northwestern Mut. Life Ins. Co., 2004 U.S. Dist. LEXIS 6697 (E.D. Pa. 2004) (same).

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circumstances, the proper exercise of an attorney’s professional responsibilities does not
prohibit, but may in fact require, the engagement of a private investigator.
D. The Relief Requested Is Inappropriate And Unprecedented.
In addition to a protective order under by Fed. R. Civ. P. 26(c), Plaintiff seeks an order to
compel production of protected work product,6 a restraining order on counsel, the revocation of
one attorney’s admission pro hac vice, attorneys’ fees, the right to introduce Defendants’ alleged
misconduct at trial, and some sort of “public version” of the order (whatever that might mean).
Even if Plaintiff’s assertions were true (they are not), he has not offered any authority for such
relief.
Plaintiff cites four cases for the proposition that the Court may order the relief he is
requesting. While Defendants do not doubt the broad discretion of the Court to fashion
appropriate remedies for ethical violations, these cases offer no support for the relief requested
here. Three of these cases do not remotely resemble the present circumstances.7 On the other
hand, in United States v. Kouri-Perez, 187 F. 3d 1, 4-5 (1st Cir. 1999), the First Circuit dismissed
as premature an appeal where the district court had sanctioned an attorney for making unfounded
claims that his opponent had threatened a witness, and for broadcasting these unfounded
allegations to the media. This last case suggests that it is not the conduct of Defendants that
should be examined, but that of Plaintiff’s counsel.

United States v. Nobles, 422 U.S. 238-39 (1975); Clark v. Edison, 2010 U.S. Dist. LEXIS at *4
(D. Mass. 2010) (Hillman, M.J.)
6

See Chambers v. NASCO, Inc., 501 U.S. 32 (1991) (upholding sanctions for frivolous filings
under Fed. R. Civ. P. 11); Roadway Express v. Piper, 447 U.S. 752 (1980) (interpreting feeshifting statute pertinent to civil rights litigation); Ty, Inc. v. Softbelly’s Inc., 353 F. 3d 528, 536537 (7th Cir. 2003) (reversing sanctions for failure to include documents on exhibit list).

7

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Conclusion
Defendants request that all of the relief requested in the motion be denied, and that Mr.
Gordon’s deposition be rescheduled immediately, at Defendants’ convenience. Given Plaintiff’s
failure to support his motion with evidence or connect the supposedly improper investigation to
his refusal to appear for deposition, Defendants further request that the Court exercise its
discretion to award Defendants their costs and fees incurred in this motion pursuant to Fed. R.
Civ. P. 26(c)(3) and 37(a)(5).
Dated: November 1, 2011

Respectfully submitted,
DREAMWORKS ANIMATION SKG, INC.,
DREAMWORKS ANIMATION, LLC, and
PARAMOUNT PICTURES CORP.,
By their attorneys,
/s/ John A. Shope
John A. Shope (BBO #562056)
Julia Huston (BBO #562160)
David A. Kluft (BBO# 658970)
FOLEY HOAG LLP
Seaport West, 155 Seaport Boulevard
Boston, Massachusetts 02210-2600
Telephone: [phone]
Facsimile: 617.832.7000
[e-mail]
[e-mail]
[e-mail]

Jonathan Zavin
LOEB & LOEB LLP
345 Park Avenue
New York, New York 10154
Telephone: [phone]
Facsimile: 212.658.9105
[e-mail]
David Grossman
LOEB & LOEB LLP
10100 Santa Monica Blvd., Suite 2200
Los Angeles, California 90067
Telephone: [phone]
Facsimile: 310.282.2200
[e-mail]

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Certificate Of Service
I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
and paper copies will be sent to those indicated as non-registered participants on the above date.
/s/ David A. Kluft
B3941688.v1

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