Gordon v. DreamWorks Animation SKG, Inc. et al

Filing 40

AFFIDAVIT in Opposition re 39 Opposition to Motion for Protective Order and Sanctions. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(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

AFFIDAVIT OF JOHN A. SHOPE
John A. Shope hereby deposes and says as follows:
1. I am a partner of Foley Hoag LLP and one of the attorneys representing the
defendants in this action and make this affidavit based on my personal knowledge and in
order to respond to the plaintiff’s allegations that the actions of my colleagues and myself
in this case have been “at best…in violation of Massachusetts Rules of Professional
Conduct 4.4 and 8.4 (d) and at worst…felonious.” “Emergency Motion for Protective
Order and Sanctions” (Dkt. No. 34), at p. 7. These allegations are not only unsupported
by any affidavit or other purported evidence but also are simply false.
2. I graduated from the University of Chicago Law School and was admitted to
the bar in 1991. Other than one year as a law clerk to a federal district judge and four
months as a special assistant district attorney for Norfolk County, I have been engaged in
the private practice of law, specializing in commercial litigation, in the ensuing two

decades. I joined my firm (then Foley, Hoag & Eliot) in 1992 and became an equity
partner on January 1, 2001.
3. In the course of my practice, I have been involved in a broad range of
commercial cases, including intellectual property cases, in which one or both sides
engaged private investigators for such purposes as investigating potential fraud,
investigating party and witness background and associates, locating potential witnesses,
developing facts for impeachment of witnesses, verifying or contradicting witnesses’
versions of events, locating assets, and other purposes, all of which bore upon the
prosecution or defense of the case.
4. I am therefore very surprised to read in the plaintiff’s motion (p. 5) the
(unsworn) assertion that the attorneys at Fish & Richardson have “never encountered”
surveillance of a party or interviews of a party’s neighbors “in an intellectual property
case.” Indeed, my colleagues have quickly identified four reported decisions in cases ̶
all intellectual property cases ̶ in which the similar use of private investigators by Fish &
Richardson or its client is discussed.1
5. In this case, I believed that an investigation of plaintiff Jayme Gordon was not
only appropriate, but even required as part of competent representation of the defendants.
See Coach, Inc. v. Angela’s Boutique, Civil No. H-10-1108, 2011 U.S. Dist. LEXIS
65876 (S.D. Tex. June 15, 2011) (investigator used pretext to detect sale of allegedly
counterfeit handbags in trademark infringement suit); Bose Corp. v. Neher, Civil No. 0911479-PBS, U.S. Dist. LEXIS 143644 (D. Mass. July 13, 2010) (private investigator used
to identify sellers of headphones allegedly infringing plaintiff’s trademarks); Power-One,
Inc. v. Artesyn Technologies, Inc., Civil No. 2:05-CV-463, 2007 U.S. Dist. LEXIS 75685
(E.D. Tex. October 11, 2007) (private investigator used in patent infringement case to
track down former employees of alleged infringer); Dimension One Spas, Inc. v.
Coverplay, Inc., Civil No. 03cv1099-L (CAB), 2006 U.S. Dist. LEXIS 90838 (S.D. Colo.
December 15, 2006) (use of private investigator to locate inventors of preceding patent in
infringement case).
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Mr. Gordon’s claim, which was filed without warning and three years after the allegedly
infringing film, Kung Fu Panda, had been released in theaters nationwide in 2008, was
implausible on its face, and the critical allegations of access by the DreamWorks
defendants to Mr. Gordon’s supposed creative work ̶ a necessary element of his claim ̶
were made on mere “information and belief.” See Cmplt. ¶¶ 51, 53-57. Furthermore, I
learned from our co-counsel, Loeb & Loeb LLP, that in the course of successfully
defending a case in California by another claimant who also asserted that he, not
DreamWorks, had created the Kung Fu Panda story, DreamWorks had encountered no
evidence whatsoever of any contribution by Jayme Gordon. To the contrary, numerous
witnesses had testified to independent creation by the DreamWorks staff.
6. Mr. Gordon’s claim became even more dubious when his attorneys admitted
that he had no record of the materials that he purportedly had submitted to DreamWorks
in 1999 and on which he bases his claim.
7. The documents that Mr. Gordon had produced following this Court’s
Modified Discovery Order of June 30, 2011 also revealed numerous inconsistencies in
the style, story line, and other critical elements in Mr. Gordon’s purported creative works.
These inconsistencies strongly suggested and still suggest that some or all of the
documents  including those pictured on page 2 of the present motion for protective order
 might have been fabricated after the fact for purposes of filing a copyright infringement
lawsuit. Mr. Gordon’s attorneys admitted that he had not filed the relevant materials for
his case with Copyright Office until 2008, many years after their supposed creation but
shortly after Mr. Gordon had seen a movie trailer for the then-forthcoming DreamWorks
Kung Fu Panda film.

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8. The suspicion of fabrication was further strengthened by the fact that Mr.
Gordon’s attorneys made a subsequent filing with the Copyright Office admitting that
drawings on which he bases his claim were not completed in 1999, as previously
represented, but instead were not completed until 2008 ̶ and thus after DreamWorks had
created and began publicizing its film. In other words, Mr. Gordon had previously
falsely stated the date of creation, and I believe that he likely did so intentionally given
the critical importance of that date to his claim in this case. See Ex. A hereto.
9. The suspicions of fabrication were further heightened by shifting
representations of Mr. Gordon’s attorneys on related critical matters. To help determine
whether Mr. Gordon had fabricated his drawings, by letter dated August 11, 2011, I
requested a forensic examination of Mr. Gordon’s computers, since it was clear that at
least some of the material had been created on a computer, and Mr. Gordon affirmatively
alleged (Cmplt. ¶ 68) that he had used a computer program, Photoshop, for some of his
drawings. At first Mr. Gordon’s attorneys agreed to such a forensic examination, but
then categorically represented to me, just before the initial status conference in this Court
on August 17, 2011, that Mr. Gordon did not have any computer to be examined.
10. Mr. Gordon’s attorneys later represented to my co-counsel in writing that Mr.
Gordon did have a computer, but that it supposedly had not been used for relevant work.
This was so because, as Gordon’s attorneys represented to me in writing, after having
used a computer to create his application for copyright protection in 2008 (admittedly
after having viewed a trailer for the DreamWorks film and doubtless in anticipation of an
infringement suit), Mr. Gordon discarded the computer and all of the relevant electronic

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files on it. See letter dated August 30, 2011 from Kristen McCallion to John A. Shope,
attached as Ex. B.
11. These shifting representations and now admitted facts strongly suggested, and
continue to suggest, that Mr. Gordon fraudulently fabricated the drawings on which he
bases his copyright infringement claims and then discarded the computer used for that
purpose in order to conceal the fabrication.
12. In the meantime, a review of public records showed, among other things, that
Mr. Gordon had a criminal conviction for assault; that he had been the subject of a
restraining order; that he had been sued for failure to pay credit card debt; and that he had
made claims for a personal injury (loss of hearing) but resisted an independent medical
examination, with a Superior Court judge ruling that his case was not likely to succeed on
the merits; and that he had made a claim for accidental damage to his vehicle for which
he lacked documentation and that an adjustor considered inflated by a factor of almost
ten. Furthermore, while the complaint (¶ 2) alleges that Mr. Gordon is an artist by
profession, there was no evidence of any licensure of any work that he may have created.
13. Taken together, the foregoing facts and others certainly suggested, and
continue to suggest, the possibility that some or all of Mr. Gordon’s allegations are
fraudulent, and that my colleagues and I would be remiss if we did not investigate.
14. To that end, I took charge of supervising the investigation. We retained the
investigative division of Marcum LLP, an international accounting firm and licensed
detective agency that my co-counsel and law partner, Julia Huston, indicated had
successfully been used in a previous intellectual property case, and in particular a lead

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investigator whose credentials include a law degree and service in the Federal Bureau of
Investigation.
15. I specifically instructed Marcum to conduct surveillance and otherwise obtain
information by lawful means only. I further instructed Marcum not to make any
misrepresentations.
16. To the best of my knowledge and belief, no interviews were conducted of Mr.
Gordon’s relatives. Contrary to the unsupported assertions in the plaintiff’s motion, there
was no intent of “overt” surveillance.
17. There was no intent to harass or harm Mr. Gordon, but only to seek the truth
as it bears on this case. I am not aware of any conceivable basis whatever for the
unsworn assertion in the plaintiff’s brief that Mr. Gordon feared for the safety of his 16
year-old son.
18. Mr. Gordon’s attorneys did not explain why they waited almost two weeks
after Mr. Gordon’s discovery that he was being observed to make this complaint. Only
two days before his long-scheduled deposition they did, however, announce that Mr.
Gordon would not appear for his deposition, which had been originally scheduled for
September 22, 2011 and then rescheduled to October 19, 2011 at their specific request.
The plaintiff’s attorneys asserted that the fact of the investigation was the reason for Mr.
Gordon’s refusal to appear but did not explain the supposed connection between those
two points. Nor did they change their position after being advised in writing that
observation of Mr. Gordon had concluded weeks earlier.
19. The present motion for a protective order was filed at 7:03 p.m. on October
18, 2011, the day before Mr. Gordon’s scheduled deposition, without evidentiary support,

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without advance consultation other than correspondence announcing his refusal to
appear, and without any explanation of any connection between the fact of the
investigation and Mr. Gordon’s refusal to be deposed.
I hereby declare under the penalty of perjury that the foregoing is true and correct.

/s/ John A. Shope
John A. Shope
Dated: November 1, 2011

B3937745.v9

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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

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