Courtney Milan's Blog

January 29, 2016

Button proclaiming Hi everyone. A reminder: my posts are my own personal opinion, and not the views or policy of any other organization.


I know there’s been talk about recent events–some of it public, some of it private. I wanted to lay out how I see it. I recognize that there are other viewpoints. But I feel that some of the talk has centered on what is “nice,” and I think it’s important to step back and take a look at the broader issue here.


I’m not naming names, because–believe it or not–I don’t want this to be about the person who set off this firestorm, and I don’t want to hurt her. If I use her name, this post will show up in Google searches about her, and that might hurt her.


Here is how I see what happened:



On January 15, 2016, a post went up on Kirkus Reviews blog. That post was about celebrating diversity. It also contained this extremely troubling claim: “I rarely get romances to review that are written by or include characters of color. So even when I actually buy a book, or a publisher sends me an author I really want to read, I usually don’t have time—reading that book takes me away from titles I get paid to read.” Let me translate if you’re not seeing what’s wrong with this: This says that Kirkus and NPR (the entities this author works for) by and large do not review books by diverse authors. The author of that post vowed to read more diverse romances in her spare time, but did not say anything about trying to change the conversation at her institutions.
These are major review sources. Librarians and book sellers rely on these publications to decide who to purchase. Not being reviewed by these sources, ever, makes it materially difficult for an author to have a break out career in traditional publishing.
This is an example of structural racism. Everyone may mean well, but if a publisher knows that a debut author isn’t going to get a Kirkus review, that publisher is less likely to buy that author–even if they care about diverse books, they also have to care about the bottom line. If a librarian wants to buy diverse romances for her collection, but they aren’t being reviewed, how does she find them? And so on and so on.
However positive your personal interactions with the individual who wrote that post may be, that person has a history of interacting with–particularly–women of color and queer authors in a way that has been less positive. Not all queer authors or women of color. I don’t even know if it’s most of them. But it’s enough that there’s a pattern. This history is not based on the one post I list above. It is a years-long history. I don’t want to make this post about her. I’m not posting examples. I don’t actually want to hurt her personally, but I do want to address the structural racism, and I have to mention this history to contextualize what happened.
I left a comment on this post, asking her a number of questions.
The author wrote a response, posted as a second post on Kirkus’s blog. I’m not going to go into the myriad reasons why I felt this response was inflammatory and unresponsive. There’s only one that matters. One of the major structural barriers that creates a roadblock for diverse authors having careers–that they aren’t reviewed by major publications–was not addressed by the person who was best in a position to remedy that structural barrier–namely, the person who reviews for those major publications. A promise to read more on her personal time doesn’t remove that structural barrier.
Numerous people (including yours truly) discussed that second post on Twitter. Years of frustration leaked out in those responses. Multiple people told stories about things that had been done to them by that person. These were not gossipy bar stories. These were people who were complaining about structural barriers to entry for underrepresented authors: that a key person who wrote key reviews and organized key romance events that could help unlock key markets to help romance authors break out was systematically excluding them.
These people, these complaints, and me in particular, have been labeled by some as “mean-spirited” and “unprofessional,” and some people are circulating a counter-narrative that fails to mention the issues above.

That’s how I see the history.


Why do I personally speak out on this issue, and why is it important for me to continue to speak out?


Because of items 1, 2, and 3 on the list. Underrepresented people are systematically being excluded from benefits that are extended to white, straight authors. Kirkus Reviews published a piece admitting that, with only a tiny number of exceptions, they don’t review romances except those written by white authors.


Skip the reasons. Just look at that sentence. Kirkus Reviews published a piece admitting that, with only a tiny number of exceptions, they don’t review romances except those written by white authors.


This isn’t about who is nice and who is mean. It’s about a fundamental injustice that is being dealt, over and over, to people of color, to queer authors, to disabled authors, to religious minorities, to trans authors–authors who don’t want a leg up; they just want the same chances.


White, straight authors, I know you have all told yourself at some point, reading about past injustices, that you would do what was right. You’ve read about heroes and heroines who put themselves in great danger to change the world. You’ve told yourself that if you’d been in their shoes, you’d have been the one who stood up and helped instead of taking a backseat.


You don’t have to put yourself in personal danger today to stand against injustice. You just have to say that happily ever afters belong to everyone. To say that every author deserves a chance at a career. To stand up and shout that an author’s book should have a chance to be judged based on the quality of her writing, and not on the color of her skin.


Kirkus Reviews published a piece admitting that they don’t review romances except those written by white, straight authors.


Yes, I’m mad. As a career-focused romance author, I’m mad that some authors are being systematically denied the opportunity to have a career creating happy endings.


If you care about romance and the future of the romance genre, why aren’t you angry with me?


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Published on January 29, 2016 09:59 • 183 views

September 20, 2015

Reminder: I make this post on behalf of myself, and not any other entity.


Recap: Over a year ago (god, really?) Ellora’s Cave sued Jane Litte and Dear Author, alleging that DA had defamed EC in a blogpost that detailed layoffs, failure to pay contract employees and authors, among other things. Lots of things have happened, like we moved to federal court, and then there was discovery (but maybe not all of it), and motions for summary judgment.


Here are the issues that are still pending:


A. The claim by EC against DA alleging defamation.

D. The claim by DA against EC alleging abuse of process.

E. The motion by Ann Jacobs (hereafter AJ) proposing to intervene as a permissive counterclaimant in the litigation.

F. A bunch of stuff related to the discovery period.


This part of the update will start to talk about DA’s motion for summary judgment, but won’t really get into the substance. But before we get there, a not-so brief update on another pending matter.



F. What is going on with discovery?


What’s gone on thus far: More detail here, but for those who don’t want to recap: Preliminary discovery ended, according to case management, on July 15th. DA asked the court to clarify that discovery was still open; EC said it didn’t need any clarity, as it was sure discovery was completely closed. DA then filed a motion saying, “Okay, we move that you say discovery is still open, and toll the timeline for responding to their summary judgment motion until they actually respond to our shit.”


EC has filed their response to this motion. They make two arguments:


(1) This is a motion to compel discovery, not a request for further discovery, and since it is a motion to compel, it does not comply with Local Rule 37.1.


Some tiny background information: A “motion to compel” is a motion that says “we asked the other side to provide X information; they didn’t do it; make them cough it up.”


Here is Ohio Local Rule 37.1. It states that: “Discovery disputes shall be referred to a Judicial Officer only after counsel for the party seeking the disputed discovery has made, and certified to the Court the making of, sincere, good faith efforts to resolve such disputes.” It further explains that “No discovery dispute shall be brought to the attention of the Court, and no motion to compel may be filed, more than ten (10) days after the discovery cut-off date.”


EC then explains that they have not, in fact, failed to produce discovery. They explain that they have not been unwilling to schedule depositions (I said earlier that there was obviously some response missing here–I have not seen evidence of refusal to be deposed from EC at this point), and that they were willing to produce the documents that were requested, and they include emails to that effect.


Nice emails. One of the things that this demonstrates is that EC simply has not complied with its burden to produce documents. The email, sent September 3rd, postdates EC’s filing of its motion for summary judgment, and is absolutely an admission that EC has not met their burdens.


 


So the real question: Is this substantively a motion to compel?


The remedy requested in a motion to compel is, “Make them give X information.”


The remedy requested in DA’s motion is: (1) Tell EC that discovery is still open; (2) Toll the statute of limitations until they comply. Since Local Rule 37.1 states “no motion to compel may be filed, more than ten (10) days after the discovery cut-off date,” the question of whether discovery is still open must come before a motion to compel. If DA filed a motion to compel at this point, EC would have said that that should be stricken, because it came more than ten days after the cut-off date.


Right now, there are several possible underlying factual scenarios:



Randazza did not push hard, or follow up on, deposition requests and document production because he did not believe EC would be filing a motion for SJ, and believed in good faith that discovery would still be open after July 15; EC believed in good faith that discovery would not be open after July 15, and acted accordingly;
Both EC and Randazza believed discovery would not be open after July 15, and Randazza nonetheless dropped the ball.
Randazza believed in good faith that discovery would be open after July 15; EC knew he believed this, and encouraged this belief, and actively planned to use the July 15 date to avoid discovery.

#3 would clearly suggest discovery should still be open for DA; #2 should suggest that discovery should not be open; and #1 would require further inquiry. One of the ways where it’s clear to me that EC’s lawyer is just…not very good, is a repeated failure to weave a convincing factual narrative about what has actually happened. But Randazza isn’t being as good as he otherwise could here, either, so I’m left with a lot of questions as to what actually transpired from both sides of the story.


(In all fairness, I say “not very good” but my standards are absurdly high on the brief-writing front–while I appreciate MR’s usual clarity, he’s no Carter Phillips. But I forgot (read: blocked out) how terrible diversity jurisdiction cases really are in federal court–so we are probably above average, as much as it pains me to admit that. Yours truly is just a massive snob.)


In any event, I am having a hell of a time trying to figure out the facts from the bunch of inconclusive emails filed by either side. Eye-roll; this case is apparently deciding to be a diversity jurisdiction case all of a sudden. I hope the court has some better idea what is going on.


(2) DA also claimed that new evidence has surfaced which would support additional discovery. I barely touched on this, and didn’t talk about the legalities underlying it, and I don’t want to do that much now here, because it’s boring. But basically, some new shit happened, DA says “even if you don’t think discovery is still open, you should reopen it for this,” and EC responds, “eh, doesn’t meet the standards.”


Finally, a note as to a footnote in this response. Screen Shot 2015-09-20 at 10.22.25 PMTina has made this argument before. “How chilled can your speech be if you keep speaking?!”


So let’s put a little nuance out there. I realize that some people aren’t great at nuance, but this is…not exactly a knock-down argument. It’s not even actually a responsive argument.


The hashtag is literally called #notchilled; do you think that might be because we recognize that our speech has not been chilled? The hashtag was aspirational when it was started. But we made a hashtag and we enumerated the chilling effects of this lawsuit and we crowdfunded legal fees (not all of them) and we urged people to speak in numbers where there is safety. And we did all that so that the authors who stuck their necks out wouldn’t be hung out to dry.


None of this would negate the fact that EC may have filed the suit for an illicit purpose, because I’m fairly certain that EC had no idea the romance community would rally around Jane. I suspect that EC had never heard the words “Streisand effect.”


So, yes. It’s entirely possible that EC tried to chill speech and failed. The entire point of the hashtag was that EC was trying to chill speech, and the hashtag was called #notchilled because we (me, at least) wanted EC to fail.


The fact that EC failed to chill the speech of the authors who gave depositions has nothing to do with what they were trying to do and everything to do with their incompetence at succeeding.


One last point:  EC spent months shouting about how they’re going to take on Amazon The Great Enemy Who Also Made Them A Shitload of Money. They accomplished this by…redoing their website so that customers lost all faith in their company and decided to never shop directly with them again. So “tried and failed” would be consistent with prior practice.


A. The claim by EC against DA alleging defamation.


Look, I vaguely imagined that I would post all the evidence in DA’s motion for summary judgment, but it’s been weeks and I still cannot be arsed to do it. There are 54 exhibits. I do not want to link everything. Luckily, Deirdre has already done it, so if you want to go and read those, they’re here–scroll down to item 46 on the docket.


I just want to talk about one of the exhibits right now–substance will wait for another day–and that is Jane’s nearly 300 page deposition. There are a lot of things in there–for instance, the lawyer in question asks Jane whether her husband has a family in another country, which is a strange, bizarre, irrelevant, and rude question.


Here are some general thoughts/answers to questions.


Are depositions usually this invasive?


They definitely can be. It depends on the subject matter of the lawsuit. If the subject matter of the lawsuit touches on family or finances, it will definitely be invasive.


For instance, if/when Marc Randazza gets around to deposing Tina, he’ll probably ask her a lot of questions about how much shopping she did and where. That’s an issue that Ellora’s Cave has mentioned in this lawsuit, and so we should be aware of it.


Did Jaid Black/Tina Engler/Patty Marks ask that Jane be treated this way?


I doubt that they understand litigation strategy, or the law, or depositions, well enough to be giving that specific a direction to the attorney, and I doubt the attorney would accept that level of direction from them.


Asking about her daughter? What purpose does that serve? How is that okay?


I’ll say more about the litigation strategies that may be in play here in a moment.


I have almost zero deposition experience—which is to say, evidentiary challenges to depositions almost always end up being dealt with at the district court level. I attended a deposition someone else was running when I was a summer associate. So, as I said, little experience on my end.


That being said, last weekend two weekends ago, I was at a friend’s wedding, and that friend was a lawyer, and that meant that many of the guests were lawyers.


So I asked them what they thought about this. General answer was: What the hell is this, this is a terrible thing. Someone wondered if, perhaps, this was a way to set Jane at ease and make her less guarded in her responses. Most people actually like talking about their family, and so asking about a kid is a friendly thing to do, something that puts someone off their guard. It relaxes them.


And possibly, I might give that some credence. Having taken some time to think it through from the point of view of someone who still refers to romance novels as “female romance novels,” it’s possible that the attorney here thought it was a harmless, irrelevant question. He has no idea what it’s like to be a woman on the internet who occasionally writes about sexual matters and who doesn’t want her daughter drawn into a horrible dispute with thousands of witnesses. He’s not really thinking about the fact that hundreds of people will be reading this, and so isn’t thinking about what is appropriate for public consumption.


Maybe? Giving Mastrantonio the full benefit of every possible doubt. But then…


How about the crack about her husband having an affair/a family in another country?


Totally a douchebag move. And coming so closely on the heels of the question about her daughter, it’s extremely difficult to imagine a lawyer who wanted to set Jane at ease asking this question.


That being said, total douchebag moves are a litigation strategy. It’s not a great litigation strategy, but it surely is one.


Depositions serve multiple purposes. I don’t pretend to know them all; I’m hardly an expert at trial strategy. But there are at least two purposes to which lawyers put depositions.



The deposition serves as the basis for the evidence that will likely be presented at trial; as such, it can be used in motions for summary judgment.


Because the deposition is sworn under penalty of perjury, it can be used at trial to discredit a witness. Specifically, if a witness says something at trial that differs from what they said in their deposition, a lawyer can pull out the deposition and ask the witness to read the (contradictory) words in their deposition. And then you get this lovely back and forth that goes something like this: “Who said those words?” “I did.” “And when did you say them?” “At my deposition in March.” “Did you solemnly swear to tell the truth, the whole truth, and nothing but the truth in March?” “Yes.” “So which is it, then? Do you believe A or do you believe B?” Even if A or B is irrelevant to the case, the fact that the lawyer can prove that the witness said one thing at trial and a different thing in the deposition reduces the witness’s credibility: they’ve been painted a liar.

Things #1 and #2 both explain why you might, hypothetically, want to be a jerk to a witness. For thing #1, the angrier the lawyer makes Jane, the more likely she is to snap. And if she snaps, she’s more likely to say something like, “I hate Tina Engler, and want to see her suffer”—anything that would provide some kind of motivation to suggest that she would purposefully, knowingly write lies. Because that’s pretty much the only hope in hell that EC has of surviving summary judgment. (More on this later.)


#2, of course, is also related. The more rattled someone is, the more likely they are to say something that’s not what they would normally say, which means you increase the likelihood that you can find a difference between what the witness says in the deposition and what the witness says on the stand.


So that’s my best guess as to why you have these incredibly rude questions. It’s a litigation strategy—the litigation strategy of being a douchebag. None of the people I talked to thought it was a good idea, and there was general agreement that it’s not done in their circles. But this is not so douchebaggy a strategy that I would say that nobody adopts it.


I mean, we probably have at least Mastrantonio.


But what about asking about Jane’s pen name? How was that relevant?


That was ugly and invasive. I’m going to give you that. And since there was apparently an agreement before hand not to ask about it, it was also a jerk move.


That being said… It’s hard to make the argument that this was not relevant to trial preparation when the defense then went and used the fact that Jane was an author herself as part of her defense, to claim that there is a common business interest.


Discovery goes to all information that would support any party’s claim. The fact that Jane was an author was clearly discoverable information. Invasive? Yes. Irrelevant? No.


So what’s your final take?


When I talked about chilling effects in the beginning, this is one of the costs that I was talking about. This litigation has been disruptive, invasive, and extraordinarily costly for Jane, and that is true on both a financial and emotional level.


Because of this lawsuit, Jane had to sit there and politely answer questions whether her husband was having an affair. She had to answer probing questions about her finances, including someone questioning why she would have problems paying tens of thousands of dollars because she potentially brought in six figures a year in income. She had a pen name that was previously secret brought out into the open, and whatever you think about that secret, that is a harm that was imposed on her by this litigation. This lawsuit cost her dearly.


There aren’t many people who could actually afford to pay those costs. The fact that those costs were imposed on someone who could pay is why we have a hashtag.

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Published on September 20, 2015 21:45 • 238 views

September 15, 2015

Since I just posted earlier tonight, a brief reminder that I speak on behalf of myself and not any other entity (yada yada) and that there’s a lot of stuff going on, so check out my last post for a recap.


I’m going to be discussing the following issues in this post:


D. The claim by DA against EC alleging abuse of process.

F. A requested clarification with the court regarding the length of the discovery period.


As you’ll see by the end, these issues are related.


To update you on where we are in D, Ellora’s Cave filed a motion for summary judgment on Dear Author’s counterclaim. Here is EC’s motion for summary judgment. There’s a declaration from Patty Marks that accompanies this, as well as a piece from Jane’s deposition.


“Summary judgment” is a term that means, “We can decide this case without a trial.” Basically, the point of a trial is to give the jury (or a judge) the chance to see the evidence, to hear the witnesses, and decide who is telling the truth. A chance to hear witnesses and weigh evidence is important where the facts are disputed, and the disputed facts would decide who wins the case.


But there are cases where the facts are not disputed–or where the facts that are disputed aren’t relevant to the disposition of a claim.


What it means for facts to be disputed requires a little more than a, “nuh uh, no we didn’t” response. You have to look at all the evidence that has been discovered.


You’ll notice, of course, that this makes it very hard to judge who will prevail on a summary judgment motion after hearing from just one side. That side of course is going to show all the evidence favorable to its side. Until you hear from the other side, the side that says “Look, but they didn’t tell you this,” you can’t really tell if they’ve made a good case for summary judgment or not.


And this is because a motion for summary judgment is not necessarily about who tells the most convincing argument about who will eventually win; it’s about demonstrating that there are undisputed facts which show you win (on the moving party’s side), or that there are disputed facts upon which the case will turn (on the non-moving party’s side).


That said, we come to EC’s motion for summary judgment on DA’s claim for abuse of process. As a reminder, a claim for abuse of process basically says that EC is perverting the justice system to achieve an end that is not allowed.


EC says that the record does not support a finding that it has perverted the justice system. And specifically, it points to a deposition by Jane in which EC’s lawyer asks her why she believes EC perverted the justice system, and she says, Because you filed the lawsuit to shut up cover artists, editors, and authors who were speaking.


I just want to point out that Jane was deposed in early March, and preliminary discovery just closed. Even though Jane is a lawyer, her stating that this was the evidence she had at the time is not considered to be binding on her. She is not the lawyer in this case, and a deposition is not a brief to the court. She also can hardly be expected to name all the evidence that her legal team will generate in her deposition.


That being said, EC is perfectly right. If the only evidence Jane had of abuse of process was that this case was filed, the judge would likely grant summary judgment to EC on this claim. I seriously doubt that Jane will not have more evidence to present then her deposition.


So, we’ll wait to see what the court has to say about this, and how DA responds, but this was…not really a stellar effort of a brief by EC. It did the job. Barely.


But if we want to talk about DA’s future response, items E and F on our EC-Watch board have now become entangled.


So this brings us to:


F. A requested clarification with the court regarding the length of the discovery period.


I covered the clarification regarding the length of the discovery period earlier. Basically, preliminary discovery closed on July 15; DA asked the court to clarify that this was just preliminary discovery, and not anything else; EC said, “No way, that was it, we’re done!”


DA responded to this, basically saying, “Uh, guys, that was just preliminary discovery, and we all knew discovery would be open longer.” They said it a little more eloquently, but I’ve summed up.


EC responded to that, saying, “No, you’re the liar.” Specifically, EC claims: “those ideas were never adopted by the Court or made part of the Court’s Case Management Plan.”


In support of this, EC includes an email from Randazza that specifically states that Randazza believes the discovery plan “did not provide for our idea,” which does not look good for Randazza.  Unfortunately, only page 1 of this thread is included, and it’s hard for me to tell from that what precisely is meant by “our idea.” EC also includes an email from Randazza looking to schedule depositions of Tina Engler and Patty Marks. Since I didn’t attend any of these conferences, I have no idea what to think, but that does look like an admission by Randazza that at least some part of the plan (what part?) was not going to be something they did. But there we are.


In response to this back-and-forth bickering (note that we had a request, a reply to the request, a response to the reply, and now a reply to the response), DA today filed a motion, essentially escalating the “request for clarification” to a “come on, now, quit this bullshit.”


The summary of the motion is this: DA believed that discovery during this period was limited. “Defendants repeatedly attempted to schedule the depositions of Patricia Marks and Tina Engler, but Plaintiffs refused to schedule such depositions.” DA did not file a motion to compel them to be deposed with the court, because they thought we still had time.


Second, DA says, “Defendants are still waiting for responses from Plaintiffs to written discovery requests served on June 10, 2015.” If true, this one is pretty jaw-dropping for me. Not that EC hasn’t complied with written discovery–this is something that those who knew about the Brashears case obviously expected. But it takes a solid dose of chutzpah to not deliver documents requested, to file a motion for summary judgment saying that DA doesn’t have any evidence, and then to say, “ha ha, discovery is closed, we don’t have to give you anything.” If that is what happened, that is absolutely acting in bad faith.


I’m very curious what Ellora’s Cave will have to say about the claim that they haven’t responded to written discovery requests, and for their sake, I hope that they have a reasonable explanation.


Accompanying this motion is a copy of the defendant’s request for production of documents. None of this stuff is a surprise (“Send us your balance sheets.”) (“Send us everything you’ve ever said about royalty payments to authors, whether internally or externally.”) (“Send us everything you’ve ever said about the lawsuit.”)


(Particularly in the last category, some of TE’s posts to the business loop that I’ve heard about from small to mid-sized birds are troubling–telling them that they could not speak about anything at all, except to their therapist or priest. Since this is not supported by the language of the authors’ contracts, posts to that effect would help build a picture suggesting that the aim in filing the lawsuit was to intimidate authors from speaking out.)


There is also a declaration from Marc Randazza supporting the claims in this motion, a file of emails regarding deposition of the plaintiffs–I want to point out that Randazza says that “Plaintiffs did not assent to these scheduling efforts,” in his declaration, but the attached emails do not show active non-assent. The emails demonstrate that he is attempting to depose them, but does not show their response, if any. I do not feel like we are getting a complete picture of what has happened here.


Finally, Randazza mentions that RWA recently issued a notice regarding EC, which would require further discovery, and that there is a Huffington Post article that states that Tina Engler indeed purchased a home in West Hollywood, which defendants only discovered on September 5.


Bottom line? DA asks the court to make clear that discovery is still open, and (here is how this is connected to the summary judgment motion) to toll DA’s response to EC’s motion until EC complies with discovery.


I’m really curious to see what EC is going to say.


What’s left: I still have to talk about DA’s motion for summary judgment. I’m going to try and tackle that this weekend, because there’s a lot to discuss.


In the meantime, NOBODY FILE ANYTHING PLZ MUST CATCH UP.


 




 

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Published on September 15, 2015 21:59 • 90 views

Disclosure: I make this post on behalf of myself and definitely not anyone else, etc. etc. and so forth.


Apology: I thought that somehow spacing this stuff out would be a good idea that would let me catch up eventually, but things are happening fast and furious right now, and so if I don’t actually time to catch up for the next few nights, I’m just going to fall further behind. I am behind on LOTS of things, not just this. Eek.


Brief overview:


Much stuff has ensued since this litigation began lo these many months ago, but right now, here are the issues pending in this case:


Ellora’s Cave sued Dear Author, claiming that a blog post was defamatory. Dear Author counterclaimed for abuse of process. Author Ann Jacobs proposed to intervene as a permissive counterclaimant.


A. The claim by EC against DA alleging defamation.

D. The claim by DA against EC alleging abuse of process.

E. The motion by Ann Jacobs (hereafter AJ) proposing to intervene as a permissive counterclaimant in the litigation.

F. A requested clarification with the court regarding the length of the discovery period.


I am going to try and knock off as much as I can here, issue by issue, until I am caught up or this lawsuit is decided, whichever comes first. So let’s start with…


E. New happenings on AJ’s motion to intervene.


To remind you where we are with this: AJ moved to intervene as a permissive counterclaimant, stating that EC breached their contract with her and that they consequently owe her A Lot of Money, and also, she wants her rights back, thank you Bob.


I have covered the initial motion and EC’s response. Since yours truly last posted, Dear Author has posted a brief in support of the motion to intervene, and AJ has posted a reply to EC’s response.


Since these are both responsive briefs to Ellora’s Cave’s response, I want to briefly remind you of what Ellora’s Cave said:



There isn’t enough commonality of law and fact
This motion is not timely
The EC contract is subject to an arbitration clause and so should not be litigated in court

I provide this for context in terms of the responsive briefs, and I’ll talk about what each of the briefs say on this point one by one.


Common Issues of Law and Fact


Ann Jacobs, by contrast, explains that the central question in her case is, “Did you pay the authors their damned money?” which is, unsurprisingly, the same question in the DA v. EC case. Honestly, on this one, I don’t think EC has a leg to stand on. OF COURSE there is a common question of law and fact here.


(Incidentally, there is this interesting procedural footnote, which I toss out as a “huh, okay.”


Screen Shot 2015-09-15 at 6.07.12 PMEeenteresting. Particularly eeenteresting in light of the filings in issue F today, but I’ll get to those when I get to them, which might even be today! Who knows! Pigs have flown before! Just put that under your hat for now.)


Randazza and Nye (Jacobs’ lawyer) both do a pretty clear job of beating this horse. It’s okay, guys; I’m pretty sure it’s dead already.


There is one point made in Nye’s brief that I want to give a little more space to:






There is also potentially significant economy for the court system not only in avoiding two trials over the same issues, but in potentially avoiding two types of collateral litigation. First, if the cases are tried separately and Ellora’s Cave prevails in the first action to be tried (whichever case that may be), then Ellora’s Cave will all but certainly attempt to give its favorable judgment preclusive effect in the second case to be tried, thus throwing the remaining parties into a quagmire of claim preclusion or issue preclusion litigation that would be avoided if the cases were tried together.






Let me explain what this means, because “preclusion” is a legal term of art. “Preclusion” means that an issue has already been tried (or should have been tried) by the court, and it is not going to be retried. So, for instance, if person A sues person B for slander, and person B prevails, person A cannot then sue person B for slander for those same words. That’s what is called “claim preclusion”: you already made that same damn claim, you don’t get to make it again.


As a general rule, claim preclusion only applies to the original parties to the lawsuit, or those very closely related. Ann Jacobs is not closely related to either Jane or Dear Author, and so I’m a little foggy as to how claim preclusion would apply here.


“Issue preclusion” can be a little more tricky. An example of a place where issue preclusion can be huge is in bankruptcy court. If the bankruptcy trustee hears from (it thinks) all the creditors and divvies up the assets  and then you step forward and say, “Wait, what about me, you never heard from me!” the answer is, sorry bucko, you had your chance, you didn’t step forward, you’re DONE. That issue has already been settled, and the fact that you didn’t say anything is irrelevant.


Issue preclusion, however, in non-bankruptcy contexts (there’s a huge statutory framework underlying bankruptcy) is more generous. If person A sues their bank saying that they mishandle transactions, and person B (unrelated to person A) sues their bank saying that they mishandle transactions, it’s perfectly possible that person A could win and person B could lose, even if they present identical factual situations, and that the result in case 1 would not have an impact on case 2.


I seriously doubt that either case would actually have a preclusive impact on the other.


So here’s how I translate what Nye is saying: “This issue may be bogus, but EC will absolutely try to use it either way, and create more vexatious motion practice, so let’s try and combine the two cases for efficiency’s sake, and by ‘efficiency,’ I mean ‘avoiding stupid motions that waste money.'”


While I empathize with that, I am not sure the court will accept the argument that we should lump all the EC cases together and stick the court with them forever and ever just because EC might file stupid motions.


Timeliness


AJ raises several points on timeliness.


First, discovery is not yet finished. (More about this later).


Second, some of the conduct raised in the counterclaim had not occurred until fairly recently (e.g. one month ago), and so AJ was not dilatory in filing this motion.


Arbitration


Finally, as to the arbitration clause, AJ says this:






The fact that there is an arbitration clause in the publishing agreements does not weigh against allowing intervention, because the scope of arbitration is quite limited. The publishing agreement in Exhibit 1 to the intervening counterclaim . . . provides generally for arbitration, and then states, “Notwithstanding the foregoing, the parties shall have the right to conduct discovery and the right to seek injunctive relief in any court in the State of Ohio.”






And that, folks, is why the counterclaim is structured as it is: seeking injunctive relief and a declaratory judgment first. I note that claim 3 of the counterclaim is a pure claim for money damages and breach of contract, which would fall under the (very) limited scope of the arbitration clause, and Nye kind of doesn’t really say anything about that.


My takeaway? I still think it’s likely the court will bounce this, but again, I don’t know for sure. And if the court does bounce it, I suspect we’ll see it get refiled in some form, and we’ll be able to have our popcorn and eat it, too.


I’m going to try and publish another post covering both the motion for summary judgment on the counterclaim and the discovery issues, hopefully soon, hopefully tonight, because there’s some interesting stuff that just got filed in that today. But for now, I need to walk the dog and have dinner.

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Published on September 15, 2015 17:49 • 67 views

September 4, 2015

The usual disclosure: I make this post on behalf of myself, and not on behalf of any other entity, etc. etc.


My apologies for falling behind in the reporting here; it’s been a busy week for me as well as for the case. In the interest of getting caught up, I need to break up everything that has happened into semi-meal-sized pieces and try to spread it out over the weekend.


The obligatory recap


Jane at Dear Author published a blog post, called “The Curious Case of Ellora’s Cave,” which detailed instances of nonpayment to authors, tax liens against the publisher, and so forth. Shortly thereafter, Ellora’s Cave sued Jane. After some initial rattling of sabers, the parties settled down to conduct discovery and we had many months in which very little was publicly posted.


That changed, and how. In this last week or so, the following have happened. Note that I will once again start labeling separate threads with letters–something that I did back in the initial saber-rattling period–to help keep track of what is going on. I will continue to use these letters in the future to designate these different threads, because once again, these threads are (relatively) independent.


Up until this last week, here were the current active threads in the litigation:


A. The claim by EC against DA alleging defamation.

D. The claim by DA against EC alleging abuse of process.


We now must add:


E. The motion by Ann Jacobs (hereafter AJ) proposing to intervene as a permissive counterclaimant in the litigation. 

F. A requested clarification with the court regarding the length of the discovery period.


We have had action on all four of these threads in the last week, but I haven’t had time to say much about any of these.


In this post, I’m going to deal with issues E and F, since I can knock them off fairly easily. A and D are going to take a little more time because we’ve had motions for summary judgment in them. I also want to take a little time to specifically talk about Jane’s deposition.


Here’s what’s new in E and F.


E. AJ’s motion to intervene as a permissive counterclaimant.


I covered the proposed motion to intervene when it was filed about a week and half ago here. Ellora’s Cave has filed its expected objection; you can read it here. It’s actually one of the better legal briefs that I’ve seen from Ellora’s Cave.


To sum up: they think the motion is not timely (one of the requirements), and I’ve already said I agree. They say that there isn’t a common kernel of fact and law (I’ve already said I disagree–there are clear commonalities of fact, enough to satisfy the standards, but EC has to make the argument, and they do). They say a few other things, but I think the only argument they make that I haven’t yet touched on is this: “[T]he existence of an arbitration provision in the contract militates against intervention. The arbitration provision provides as follows:…” EC then proceeds to cite not the complete arbitration clause, which is interesting because the complete arbitration clause lists exceptions, and one of the exceptions is seeking an injunction, which is one of the things Jacobs is doing.


But, yeah, arbitration: not a good friend of class action litigation. You have it there.


I already spent a while last time muttering about how, if I were a judge, I’d want nothing to do with this, and that is still where I’d lay my odds today.


F. The request regarding discovery.


I have not mentioned this tiny little thread at all. On August 31st, Jane/Dear Author filed a request with the judge asking him to clarify whether discovery was still open. Specifically, the defense stated:





At the status conference on August 24, 2015 counsel did not clarify with the Court that limited preliminary discovery was not a tactical decision on the part of the defense but rather a plan set at the case management conference. Given that plan was allowed by the Court on January 26, 2015, and acknowledged in the Case Management Conference Order (Doc. 29) by the notation of a preliminary discovery cutoff date of July 15, 2015; the parties require clarification that discovery is still open after the July 15, 2015 preliminary date.








As such, Defendants respectfully request this court allow discovery to continue up to and including January 15, 2016.


The question was asked on Twitter: Why was this being filed? And more specifically, someone said, I hope Courtney explains.


Alas, Courtney is not made of magic. She is not even made of psychic energy. She has only the public filings to go on, same as you, and sometimes I understand a document’s purpose differently, but if I’m not privy to what’s going on behind the scenes (and I am not in this case), I don’t know any thing more than you. So I wasn’t sure why this was being filed. There were a number of reasons I could guess at.



The court’s order left it unclear, and this really was just something that was being put out there for the sake of clarity.
The defendants wanted to remind the judge that the discovery date mentioned by the proposed intervenor was, not, in fact, an official closing, even though that might be what the calendar said.
The plaintiffs were being recalcitrant about scheduling further discovery and this was a prod.

Since I don’t know what happens behind the scenes any more than any of you do (really–despite what someone says about this case being tried by the defendants in social media, Jane doesn’t talk to me about it at all), I had no way of knowing whether this was an idle clarification or designed to address something in particular.


In any event, even if there was no overt recalcitrance regarding scheduling up until now, plaintiffs decided that this was a very convenient boat to jump aboard, and did so. Yesterday, they filed a document with the court that stated as follows:


The Plaintiffs are not seeking clarification of the court’s order as the order is sufficiently clear. Nor are the Plaintiffs seeking to reopen discovery for the purposes of allowing the identification and deposition of new witnesses. The appropriate time for that type of discovery was prior to July 15, 2015, prior to the filing and preparation of summary judgment motions. Defendants had the same opportunity as Plaintiffs to depose witnesses for trial or to support their dispositive motion, but having failed to make use of that opportunity in a timely fashion, now seek an extension of discovery.


My response to that is distinctly raspberry-colored. Plaintiffs joined in filing the report of the parties planning meeting, which states:


Defendant expects to file a motion for summary judgment after Plaintiff completes its discovery. Discovery shall be suspended while summary judgment motions are pending.


We all understood from the court documents that this meant that Jane would be deposed first, summary judgment motions would follow, and then, if they were not granted, EC witnesses would be deposed. And this makes sense, because deposing witnesses is hugely expensive, and if Jane can get away with not having to spend upwards of $30,000 deposing EC employees and principals, she will.


If I picked this up from a few paragraphs in the court documents, I can’t imagine that EC and its lawyers didn’t understand it when they were standing in the room.


Updates on other sections to be continued…

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Published on September 04, 2015 15:48 • 176 views

August 20, 2015

General disclaimer: I am writing this in my individual capacity, and not on behalf of any other party. Thank you!


People have been asking me if I am still covering the EC case. The answer is yes, except there has been nothing to cover except status reports, and I’m unmotivated to cover status reports.


That just changed. Today, an EC filing landed in my inbox. I looked at the title–Motion to Intervene–vaguely thought that this was going to be the motion to attach Jaid Black/Tina Engler as an indispensable party to the litigation, something that was mentioned earlier in the course of litigation (although that wouldn’t have been labeled a motion to intervene, so why I thought that I don’t know), figured it would take 15 minutes to go through, and went about my merry way.


I opened the file while I was making dinner and whoa baby. TL;DR: Ann Jacobs has asked to intervene in this case as a third party, claiming a nexus of fact with the underlying issues, on the grounds that EC has breached contracts with her, covering 40 books, in multiple ways.


Here is the motion to intervene. Here is the counterclaim.


A much longer explanation follows after the jump.



Brief Recap


Just to let you know where we are in this case, which is proceeding with the deliberate pace of US litigation: In late 2014, Ellora’s Cave sued Dear Author and Jane, its proprietor, claiming that Dear Author defamed EC by publishing a blog post stating that EC was not paying a set of its authors, editors, and cover artists in a timely fashion, and that there were additional indicia of financial difficulties, as evidenced by tax liens. Right now, that litigation is undergoing discovery. According to status reports, EC has completed its half of discovery. According to the scheduled filed many months ago, we should expect to see a summary judgment motion from DA pretty soon-ish.


What is a motion to intervene, and will it be allowed here?


So this leads us to this very important question: What does any of this have to do with Ann Jacobs?


So a brief digression about what a motion to intervene means.


Imagine that your neighbor is keeping an elephant in her backyard, and the elephant escapes and tramples houses throughout the neighborhood. Your friend across the street sues the neighbor for damages wrought by this elephantine spree. You can then intervene in that suit, as a separate party, also claiming damages done to your house by the elephant. This saves on court time. Instead of having to hear 5 separate cases, all of which start with, “She failed to control her elephant,” the court can hear arguments about elephant control once.


The standard for permissive intervention is laid out in F.R.C.P. Rule 24(b):



(1) In General. On timely motion, the court may permit anyone to intervene who … has a claim or defense that shares with the main action a common question of law or fact.



Under this standard, there are three things that govern whether Ann Jacobs will be allowed to intervene:


1. She must have a claim or defense that shares with the main action a common question of law or fact.


In this case, that’s pretty easy to prove: If Ellora’s Cave breached its contract with Ann Jacobs by failing to timely pay royalties, that is a question of fact that is common between this action and the DA v. EC dispute. So check that box. Done.


2. The intervention must be timely.


Yeah. That’s going to be a little more difficult to prove. This litigation is now closing in on the one year mark. Interrogatories have been served on the plaintiffs, and documents have been produced. Defendants have claimed that they are going to file a motion for summary judgment right about…now-ish in court terms. This is not what I would call a super-timely motion to intervene (understatement). It’s not at the point where I’d say it’s a slam-dunk send-it-home for not being timely, but it’s at the “pretty unlikely” stage.


3. The court has to permit the intervention.


The court is given a wide latitude in determining who it permits to intervene when that person is not intervening as a right. While Jacobs has a lot of interesting things to say, the truth is that there is really only single common nexus of fact here with the EC DA case: the question of late or missing payments in early 2014. Jacobs also raises multiple issues (regarding rights reversion and breach of contract aside from failure to send out royalty checks) that were not raised in Jane’s initial blogpost. Resolving those additional issues at this late juncture could substantially prejudice both parties and significantly delay the litigation.


If I were the court, I would get out my “fuck this shit” rubber stamp and deny the motion to intervene. (If I were a district judge I would totally have a “fuck this shit” rubber stamp. This, and many, many other reasons, explain why nobody has ever made me a district judge.)


But, as I also said, the court is given wide latitude in determining who it permits to intervene, and I’m not willing to guess how that discretion will be used here.


Of course, if the motion is denied, Jacobs can turn around and immediately file the same thing in court as a regular old lawsuit.


General Note on Personal Competence in this area of law: I looked up a bunch of stuff for the purpose of writing this blogpost, but this is an area of civil procedure that I haven’t had to think about since I was a 1L. My understanding of this area of law is not great. I managed to confuse myself while writing this post. I think I have unconfused myself appropriately. If you think I’m wrong, please tell me, because I could easily be wrong on this.


The substance of the counterclaim


This is interesting stuff. I’m not going to go into much of this because you’ve been reading it on the #notchilled hashtag for a while. Jacobs alleges missing/delayed royalty payments, and failure to contractually revert rights. Yadda yadda you have all seen similar claims before.


But the most interesting part is this claim (long, but necessary) (note that “Josephson” = “Jacobs” — I have used her author name rather than her legal name above for name recognition purposes):





Notwithstanding the language in the contracts, Ellora’s Cave has stated that it believes it is entitled to calculate and pay (and has in fact calculated and paid) royalties to Josephson—and, upon information and belief, other similarly situated authors—based not on cover price, but on the actual sales price of the works. For example:


a. One of the books published under a contract substantially identical to the Mutual Favor Publishing Agreement was In His Own Defense.


 


b. Under §10.1 of the applicable contract, the royalty owed to Josephson for each digital copy of In His Own Defense was 37.5% of the cover price.


 


c. The cover price of In His Own Defense was $5.95.


 


d. The periodic accountings provided by Ellora’s Cave to Josephson reflect that in March of 2012, Ellora’s Cave sold 257 digital copies of In His Own Defense for Amazon’s Kindle e-reader devices.


 


e. Multiplying the cover price ($5.95) times the contractual royalty rate (37.5%) times the number of Kindle books sold (257), Josephson was entitled to receive a total royalty of $573.43 for March 2012 Kindle sales of In His Own Defense.


 


f. However, Ellora’s Cave paid Josephson a royalty of only $77.49. The reason for the discrepancy is that in March 2012 Kindle copies of In His Own Defense were sold at a substantial discount from the cover price, and Ellora’s Cave improperly calculated the royalty based on the sale price rather than cover price.



21. After complaints about the improper royalty payments, Ellora’s Cave attempted to modify its publishing contracts with its authors, including Josephson, by unilaterally informing the authors that Ellora’s Cave would begin paying an increased royalty rate (45% or 40%) but pay the royalty rate based on the sales price, which was often substantially lower than the cover price. The net result was that even with a supposedly higher royalty rate, the royalty payments were below those provided for in the contracts.





22. Ellora’s Cave’s attempts to change the royalty payment structure by unilateral notice is not permitted under any of the Publishing Agreements, all of which contain provisions requiring any modifications to be made in a writing signed by both Josephson and Ellora’s Cave. The attempts at modification are, however, indicative of Ellora’s Cave’s knowledge that its prior royalty payments were not consistent with the Publishing Agreements.









Or, in short: Jacobs claims that Ellora’s Cave has been substantially underpaying authors for sales on at least Amazon, and potentially other third party vendors, for several years.


Some final notes on strategy


There are a handful of reasons why I suspect Jacobs’s attorney suggested filing this as a motion to intervene in the EC v. DA case. One reason: This is a particularly embarrassing motion for Ellora’s Cave both in terms of what message it sends to the court as well as the message it sends to onlookers.


But it’s also interesting to me that Jacobs’ counterclaim uses the words “…other similarly situated authors.”


Those words–“other similarly situated authors” sound like a shot across the bow.  The fact that there are other similarly situated authors is not relevant to Jacobs’ claim in and of itself. But those words are the language of class actions. If Jacobs’s allegations are true, and if many multiples of books by many authors are vulnerable to this claim, the potential liability here on the part of Ellora’s Cave is massive. Even if they’ve been paying on time and reporting sales accurately, they could owe their authors a substantial amount of back royalties. I don’t know how the math works out in the aggregate, but looking at Jacobs’ numbers, and extrapolating based on general percentages of sales at Amazon and third-party vendors, that amount could be a solid multiple of actual royalties paid. This allegation is potentially kill-the-company massive, even for a healthy company that is flush with cash.


Jacobs clearly invested in a good attorney. She’s probably spent a good amount of her own money on this. And while there are some potential defenses on EC’s part (the arbitration clause, for instance, although that does seem to allow litigation on injunctions, which is, I suspect why the claims are worded and ordered as they are), this is a suit that would be a BEAR to litigate on multiple levels, particularly as a class-action suit.


 


Filing this claim as a motion to intervene was probably not the way to maximize the chances of success. If I had to guess, and this is purely a guess, I would say that this is an exercise in saber rattling. This is the saber I hear being rattled: Revert my titles, now, or you’ll spend well into the six figure mark defending your existence.


Ah, I do so love the smell of scorching earth. (I am tired as I write this and probably should wait until the morning to hit publish, but…nah. Let’s do it.)

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Published on August 20, 2015 21:02 • 198 views

February 24, 2015

Disclaimer: I make this post on behalf of myself, and not any other entity.


Brief recap of where we are in the litigation: As you may recall, Ellora’s Cave sued Jane Litte, claiming that Jane had defamed the company. Jane removed the case to federal court, and Ellora’s Cave, after a little dithering, tossed their motion for a temporary restraining order, leaving us with the long slog of discovery (the phase where each side gets evidence to support their case from various sources) and various dispositive motions ahead of us.


Right now, the court has pending before it a motion regarding discovery–specifically, a motion to quash a subpoena that was served on the @pubnt account on Twitter.


Yesterday, the DA team filed an opposition to this motion. Here are the pieces: the subpoena served on Twitter, a selection of @pubnt’s tweets, and the actual opposition.


There is really nothing exciting in here. In fact, it’s relatively anticlimactic. The opposition to quash wasn’t written by Randazza, and it shows–it’s sloppy and badly written. But the actual opposition does what an opposition to a motion does–namely, it cites the relevant law and applies it. The relevant law is Federal Rule of Civil Procedure 45(d)(3), which says:



On timely motion, the court for the district where compliance is required must quash or modify a subpoena that:


(i) fails to allow a reasonable time to comply;


(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c);


(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or


(iv) subjects a person to undue burden.



The first few paragraphs of the opposition are all that matters. The defendants state:





“@pubnt incorrectly assert that Defendants’ issued the Subpoena to Twitter, Inc. (the “Subpoena”) to harass, defame and punish the persons known as @pubnt. In reality, Defendants’ seek the identities of @pubnt to pursue the discovery of admissible evidence.”


And then they go on to explain that admissible evidence includes evidence that makes the plaintiffs’ case (yes, this is true! It’s not perverse! It’s the way litigation works!), and also, that the identity of @pubnt is of specific interest because if @pubnt is acting at the behest of the plaintiffs, it would certainly bolster defendant’s counterclaim.


Almost done.





Then the opposition states: “@pubnt fail to reference a reason under Fed.R.Civ.P. 45 (d)(3) for which the Court could quash a subpoena.”


This seems to be an unfair reading of @pubnt’s motion to quash. No, @pubnt didn’t cite the relevant law, but “Jane Litte is a vicious troll, and if my identity is made known to her through a subpoena, she and her gang of violent gangbangers will put me in fear of my life for exercising my constitutional right to free speech” sounds like an undue burden to me. There’s no question that @pubnt has argued that it will be subjected to an undue burden. There’s no factual basis for that argument, but it has, in fact, made that completely unsupportable argument.


More puzzling still is the selection of tweets the defense chose to present from @pubnt, all from February 13th and 14th, none of which predate the subpoena (!!!), and which miss @pubnt’s most delightful assertions of insider knowledge. It’s like whoever grabbed this randomly printed the first few pages of tweets and didn’t bother scrolling past that. The opposition doesn’t even reference or quote any particular tweet claiming insider knowledge. Like I said, it’s sloppy.


That being said, the point being made–that @pubnt has claimed to have discoverable information–doesn’t depend on even a minorly capable scan of the account in question, particularly since @pubnt admitting to having discoverable information in its motion to the court.


But the opposition doesn’t at all respond directly to the assertion that @pubnt is in danger, except as quoted above, which was to say, “We want to know this information because it’s legally relevant, not because we want to chop up @pubnt and devour it.”


I don’t think that a lot needed to be said about that assertion. It’s like @pubnt said, “Jane Litte eats twitter accounts for breakfast.” It’s such a bizarre and baffling assertion that (a) literally nobody has ever said that Jane Litte does not eat twitter accounts for breakfast, for the same reason that nobody has said that Jane Litte is not a space alien with an armada of bee-drones, and (b) it’s flatly unbelievable and wildly paranoid.


But I always believe in making the court’s job easier, especially when the court’s job is to figure out how to make sense of several pages of complaints. A single sentence to the effect that @pubnt’s fears are so outlandish that they are not even supported by the ravings of the anonymous gossip blog that it cites would have been useful.


In any event, we will see if @pubnt uses the opportunity to reply. Or maybe even get a lawyer. (Have I mentioned that @pubnt should have a lawyer? Yes, it would be nice to have someone who knew the relevant law! Especially since the remedy @pubnt probably wants is not the one @pubnt is asking for, but whatever, who needs lawyers, amirite?)


But this all basically changes nothing: we still have a wildly unsourced letter to the court from @pubnt, and a response from the defendants that basically amounts to “LOL wut?”


The other thing that happened is this article about Ellora’s Cave. This morning, twitter was asking: Why don’t Tina Engler’s statements here violate the gag order? Why isn’t anyone doing anything about it?


Reminder: the gag order in question was entered in state court when the parties agreed to delay the hearing on the Temporary Restraining Order. The substance of that order is this:





In the interim, all parties agree that neither they, nor anyone under their direct control, shall post on the Internet any comments specifically and directly related to the factual allegations that form the basis of Ellora Cave’s defamation complaint; further, they agree not to comment online, directly or indirectly, on the allegations that form the basis of the defamation complaint. Nothing herein shall prohibit Plaintiffs from responding to defamatory posts or re-posts made by third parties related to the issues raised in this litigation.


Joint Motion for Continuance.


“The interim” referred to above is the time between the filing of the joint motion for continuance and the scheduled hearing on the temporary restraining order. The gag order, then, was firmly tied to the outcome of the TRO hearing. And this makes sense: The point of a TRO is to maintain the status quo, and so until a TRO hearing can be had regarding defamation, it would make sense to have an order in place making sure that the TRO hearing isn’t completely defeated.


The literal date given for that hearing, and the end of the gag order, was October 27th, 2014. Plaintiffs informed defendants that they were dropping the TRO in late October. I suspect that a mid-November conversation isn’t a problem on simple date grounds: at that point, it was clear to all parties that the TRO was not going to be pursued.


Further, speaking to a reporter is not in violation of the gag order, which refers only to “post[ing] on the Internet” and “not comment[ing] online, directly or indirectly” — even if speaking to a reporter who posts a story is indirect commentary, speaking to a reporter who doesn’t post a story until after the TRO has officially been denied and the gag order explicitly expires is not a problem, either.


It’s also not clear to me from the article that Tina Engler actually did comment on the case. She said she did not know the identity of @pubnt, but that is not a comment specifically or directly related to the factual allegations forming the basis of the defamation complaint. And while the article refers to “Ellora’s Cave’s perspective,” it does not directly quote Engler, something that the author of the story does not hesitate to do.


Instead, everything the article says about EC’s perspective could have been gleaned from EC’s filings to the court. It’s quite possible that Engler said, “I’ll talk about Amazon and @pubnt, but if you want to know what EC’s perspective is on the substance of the pending litigation, you can read our briefs to the court, which I’ll send you.”


So in short, I don’t think there’s anything to see here.


Finally, for those who are saying, “Why doesn’t anything happen in response to the violation of the gag order?” the answer in addition to all of the above is because the court doesn’t have Google alerts set. The court is not an enforcer. If a party wants the court to enforce a gag order, it has to ask to do so. Nobody has asked, therefore nothing has happened.

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Published on February 24, 2015 11:21 • 499 views

February 12, 2015

Reminder: I post this as myself, and not on behalf of any other entity.


I would like to point out that in my initial disclaimer, I said I would try to be evenhanded. I tried with this post, but…it’s really hard to not make fun of pubnt, and I’m afraid that I failed. This is not evenhanded.


Reminder of where we are: Right now, we’re in the very beginning of the discovery phase. That means that the parties have agreed on a schedule for discovery and have produced initial witness lists. One individual on Jane’s list was the @pubnt account on Twitter. I mentioned this last week, and there was much rejoicing. The Nut went relatively silent on Twitter…but don’t worry, it has faxed a letter to the Court.


Note that, as one might have expected, the Nut does not have a solid grasp on legal proceedings, and that shows in this letter. Also note, however, that the Nut is presenting a legally cognizable argument, and even though the evidentiary basis is thin (to put it in friendly terms), the underlying legal argument is not completely unsound.


A summation of pubnt’s claims for those who don’t want to wade through them.



They don’t know anything about the business of Ellora’s Cave.
They can’t figure out why Jane wants to call them as witnesses for her side.

(Lemme help, pubnt. Here’s what’s going on. Jane thinks that you might be someone who is connected to EC, as in a personal friend of Jaid Black, or someone involved in the business. She suspects that you’ve been told inside information, and she hopes it was in email form. Jane isn’t asking you to testify on her behalf. She’s saying that you might have information that sheds light on the case. You may think that none of the information in your possession is useful to Jane, but your legal judgment is demonstrably what one would call “sketchy”.)
Pubnt claims that Jane is using the court proceedings to harass. Because pubnt is not good at using words, pubnt fails to mention that the person that is being harassed by Jane is pubnt, but that’s almost certainly what they mean. Pubnt also says that the gang that Jane is running (I think Pubnt means me and others who post on the #notchilled hashtag? — er, I’m a very bad stooge of Jane, since I disagree with her about 50% of the time, but hey) intends to harass it once its identity is known, presumably by taunting it a second time.Pubnt claims that there have been “very serious” threats made. I’m not sure what “very serious” threats have been made, but yeah, I would agree with pubnt that if pubnt’s identity was made public, and pubnt was someone well-respected, it would look very bad for them.

Chances are that pubnt is either (a) someone connected with the principals of the case, (b) someone we have never heard of, whose identity will strike bafflement into the hearts of all, or (c) someone we have already heard of, who already has little to no reputation in the community.


If I were masquerading as pubnt (plot twist!) I guess it would go badly for me when the mask got torn off, but I can’t imagine that pubnt is anyone who actually commands respect these days.
Pubnt repeats that pubnt knows nothing.
Pubnt claims that Jane is a “vicious troll” and that the judge needs to watch out for “possible gang activities” and “violation of our rights.” Pubnt doesn’t really mention which rights those are. Don’t worry; pubnt will get there. Eventually.
Pubnt mentions that Jane was banned from RWA. Pubnt fails to mention this was because Jane did not meet the strict definitional requirements for membership in RWA, which as a trade association must offer benefits only to those in the trade, but that’s because pubnt gets news from Stop the Goodreads Bullies, everyone’s favorite source for made-up anonymous bluster. Courts just love anonymous online bluster! (Lookit me not being evenhanded.)
Pubnt cites STGRB again for an attack that Jane supposedly led on an author.
Pubnt cites STGRB yet again for an attack that Jane supposedly led on Nathan Bransford, an agent.
Pubnt cites STGRB one more time for the proposition that Jane supports violence. The twitter thread, by the way, supports the proposition that Jane shrugs off hyperbole that invokes violent imagery. I’m pretty sure she doesn’t literally support authors getting punched in the throat for their books. You realize that anyone who reads this and looks at the receipts will say, “Uh, what? You’re afraid that you will be subject to actual violence because a different person said once that they were so disappointed in the ending of Veronica Roth’s book that they wanted to punch her in the throat, and Jane said NBD? How do you even function with fears like that?”Whatevs. Those are details.
Pubnt says: And there’s more! We just won’t go into details.
Pubnt says that Jane is jealous of success and targets those who are successful. (Which, of course, is why she went after EC when they reported a crushing loss of Amazon revenue, and not the publishers reporting record profits–but whatevs, details again.)
Pubnt says that Jane targets anyone who speaks out against her.
Pubnt says that they are “bystanders and legal case bloggers” (once again, no legal blog is mentioned) (Pubnt, you forgot to tell the judge that you gave Jaid Black legal advice!) Pubnt says that Jane runs her smear campaigns on Twitter, and so they have taken to the tweets to counteract her message by exercising their first amendment rights. This is the first time that pubnt manages to mention a cognizable right at stake here, so good job, pubby.I have not actually seen Jane tweet much, if at all, about this case, so presumably pubnt is conflating me with Jane here.
Pubnt mentions that Jane’s gang is made up of “self-published authors” and bloggers who profit by selling self-published authors advertisements. I am apparently motivated by jealousy, because I wish that my ebooks were priced at $7.99 with me getting 25% of net digital royalties. I am eaten up with hatred at all the many rejections I’ve received.
Pubnt reiterates that pubnt knows nothing, John Snow.
Pubnt once again calls Jane perverse and a vicious troll.
Pubnt says that it does NOT want to be a witness, nope, nosirree bob, in case there was any doubt.
To prove that pubnt is pubnt, it promises to tweet, on February 14th, “In the American tradition of free speech the public can sort out truth from fiction only when both sides have their say.” Oookay pubnt.

There we are.


There are two questions here.


1. Has pubnt made a cognizable legal argument? Uh…yes. Not very well, admittedly, but pubnt is operating pro se and judges give a lot of leeway to those who are representing themselves. Pubnt clearly alleges that (1) It is engaging in anonymous free speech; that (2) Jane’s proposed discovery is not for the purpose of discovering information about the case, but for the illicit purpose of uncovering its identity, and (3) that uncovering its identity would threaten its first amendment right to comment on the case anonymously.


These are perfectly reasonable legal arguments for someone to make, if they find themselves in the position where their right of anonymous free speech and potentially their safety is threatened by a malicious subpoena in a court proceeding. Those of us who are watching the O.o that starts with G and ends with E and has “amergat” in the middle know that there is real truth to the fact that sometimes, the veil of anonymity is necessary for safety.


So if you ever find yourself in the situation where you fear for your safety because of malicious discovery attempts, find yourself a lawyer immediately, so you can quash that subpoena.


And that is why the judge read the letter and understood it as a motion to quash any subpoenas relating to pubnt, and entered it on the docket as such. Good for the judge.


Now, I said that these are perfectly reasonable legal arguments. The other problem pubnt will have is a factual one. Jane will probably be able to explain, based on pubnt’s own tweets, why it looks like pubnt has specialized information about the case. It’s hard to be all “I know nothing, Jon Snow!” when you’ve spent the last few months talking about the fact that you know so much and nobody else knows anything.


I mean, pubnt has claimed multiple times that Ellora’s Cave is flush with cash. Bank balances are not things that the general public knows. Pubnt has claimed that it has proof of libel. If so, that would be discoverable information, and Jane Litte therefore has the right to know it. Pubnt claims that EC is about to merge with one of the Big Five–a fact so bizarre that, if true, it would surely be under embargo right now, and so pubnt’s claimed knowledge of it demonstrates that it has internal knowledge of EC’s workings. And that’s only going back to very late January; I’m sure we could harvest hundreds more tweets of claimed insider knowledge.


There are really only two possibilities. Either (a) pubnt has been lying to us all (quelle surprise), or (b) pubnt has inside knowledge of EC’s affairs and thus should be subject to discovery requests. Pubnt’s main problem is that in order to explain why they should not be subject to a subpoena, they will have to go to the court and say, “We are lying sacks of shit and you cannot trust a word we say.”


This is not a particularly comfortable legal posture.


One last question that has been bandied about on Twitter: Is the Nut in danger of…anything, for sending the Court a screed that exhibits pubnt’s typical antifactual connection to reality? There are some things in the letter that are almost certainly what we would call “lies”–I think we’ve established pretty firmly that the Nut is not a legal blogger, at least not in the sense that the Nut has a blog. Or that the Nut knows beans about law.


But the Nut hasn’t actually said this was on penalty of perjury. It wasn’t even presented to the Court as a formal legal filing. It was basically just a letter that said “HELP MEEE PLEEEEEEAAASSEEEEE THERE ARE WOLVES ON TWITTER.” If the Nut wants to eventually file something with the court to prove its point, it will eventually have to submit…something that could create some danger. But a pro se letter sent to a judge is highly unlikely to result in sanctions of any kind.


What the Nut really, really needs right now is legal advice. Good thing that one of them’s a lawyer.

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Published on February 12, 2015 17:46 • 246 views

February 2, 2015

[EDIT, 2/3 @7:24 AM: In light of Tess Gerritsen’s comment below, I’m not willing to stand by this any longer. I’ll make a few notes in the text as to why.]


Standard disclaimer: This is my own opinion, and not the opinion of any other organization.


Tess Gerritsen has a blog post out explaining why every author who sells to Hollywood or wants to do so should be up in arms about the dismissal of her complaint. Here’s why I’m not raising my arms into anything more than a shrug.


To recap, for those who haven’t heard and don’t know what is going on: Tess Gerritsen wrote a book called Gravity and sold the film rights to New Line Productions. She did quite a bit of work on a screenplay, but Hollywood being Hollywood, neither the book nor the screenplay never got made into a film. Or so she thought.


Many years later, director Alfonso Cuarón wrote a screenplay about an astronaut who was set adrift in space. This movie, also called Gravity, made a ton of money and received many accolades. Tess Gerritsen was asked how she felt about it, and basically said that the similarities were likely coincidental.


Later, however, she learned that Cuarón had been attached as director to her killed-in-infancy screenplay. And since Warner Brothers (who produced Cuarón’s Gravity), had purchased New Line in the interim, Gerritsen felt that the Gravity that was produced was her Gravity, and she was entitled to compensation under the contract. So she sued.


The district judge dismissed her complaint, claiming essentially (and here I’m skimming over a TON of corporate law that I do not care to rehash) that WB and New Line were separate entities, notwithstanding the fact that WB had purchased New Line.


Here’s the case in a nutshell: Gerritsen has a contract with New Line. If WB and New Line are separate entities, Gerritsen does not have a contract with WB, and cannot claim that WB breached her contract. If WB and New Line are the same entity, Gerritsen does have a contract with WB, and can claim that WB’s activities breached her contract with New Line.


Make sense?


I’m going to add another wrinkle. Gerritsen says the following:


Please note: this is not a case of copyright infringement. Warner Bros., through its ownership of New Line, also controls the film rights to my book.


I’m going to ask a question: Why isn’t this a case of copyright infringement? No, really. Why isn’t it one?


[Edit, 2/3 @7:25 AM: There is a much better answer to this question than what I originally said, which Gerritsen provides in the comments below: It’s not a case of copyright infringement because, having transferred this particular exclusive right to New Line, she no longer has standing to sue for copyright infringement. I’m leaving the original text up because I don’t believe in deleting my mistakes, but I will strike through as of this AM. Having not read either the book or Gerritsen’s screenplay, and not knowing how much Cuarón had access to, I’m not willing to judge whether there would hypothetically have been a case of infringement. Since she can’t bring one, it would be unreasonable for me to infer that there wouldn’t have been one from the lack of such a suit.


Mea culpa: I was importing my understanding of how a suit would work from how book contracts work, where I essentially license my rights to a publisher but retain enough of an interest in the copyright where I could sue. It shouldn’t have come to me as a surprise that Hollywood takes more rights, but I honestly didn’t consider that possibility. That’s my bad.]


The premise of Gerritsen’s book is an outbreak of a deadly virus in space, something that is not present in Cuarón’s film. Gerritsen says that she wrote a scene for the screenplay in which the international space station was destroyed by satellite debris, something that also happens in Cuarón’s Gravity.


The thing is, without more, Gerritsen has described an idea: a person in space sees their sanctuary destroyed by satellite debris. Gerritsen was not the first to come up with this idea, and she’s unlikely to be the last. Even if Cuarón was inspired by reading Gerritsen’s screenplay, unless he copied the expression of her idea, rather than just the idea itself, he would owe her absolutely nothing. That’s how our copyright law works. We get to see other people do things and say, “Ooh, good idea,” and do our own execution of it. If we had any other rule, we would all get sued. We all, to some extent, get ideas from the world around us.


So although Gerritsen does not say this, I suspect that there is a darned good reason that Gerritsen did not plead copyright infringement: Because she would not have a colorable case of infringement.


If she had a colorable case, she would (or at least should) have plead infringement in the alternative: Either WB had a contract with her and they breached it; or they did not have a contract with her, in which case they impermissibly infringed on her copyright in her book and screenplay. She gets to win either way.


Gerritsen did not plead infringement in the alternative, and since she appears to have lawyers who are competent in every other respect, I’m going to guess that this means that she was told that in the absence of a contract, Cuarón’s movie would not have infringed on her copyright. Based on what I’ve seen (which without a direct screenplay-to-screenplay comparison is very little), that’s probably right.


If that’s the case, then this line in Gerritsen’s blogpost strikes me as remarkably alarmist:


It [the district court’s decision] means that any parent film company who acquires a studio, and also acquires that studio’s intellectual properties, can exploit those properties without having to acknowledge or compensate the original authors.


It’s actually a lot simpler than that.


If Cuarón’s Gravity does not infringe on Gerritsen’s Gravity, WB had absolutely no need to acquire New Line in the first place to get access to Gerritsen’s intellectual property. WB did not need Gerritsen’s permission to exploit that intellectual property, because–recall–Gerritsen is not claiming that Cuarón’s Gravity infringed on her Gravity. Paramount, for instance, could have produced Cuarón’s Gravity. It would not have needed to acquire New Line to do it.


I am just not alarmed by the prospect of a Hollywood studio making a bunch of movies that it is legally allowed to make without compensating people whose rights have not been infringed. I can’t imagine why any Hollywood studio would have an incentive to go and buy other studios just so that it could make movies that it’s legally allowed to make without buying those other studios in the first place. And I’m going to suggest that we should wait to be alarmed by Hollywood’s unauthorized exploitation of intellectual property rights until we have a case where the artist is actually claiming that Hollywood exploited their intellectual property without authorization.


[Edit, 2/3 at 7:29 AM: Once again, I’m not going to stand by this conclusion. I will probably revamp and rethink. Maybe we should be alarmed. But I need a little more time to process, so I may not have my full reaction up until tonight.]

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Published on February 02, 2015 21:21 • 153 views

February 1, 2015

Disclaimer: These are my own views, and not the views of any other organization with which I might be associated.


So, the Case Management Conference happened on Monday, and there were a flurry of things posted on the docket. I’ll link to the information for those here, provide a little that didn’t show up on the public docket for whatever reason, and point out one or two tiny little things.


Here’s the new stuff that has appeared on the docket since my last post (as a note, Deirdre Saoirse Moen usually posts these with greater alacrity than I do; I tend to put them off if I think they’re boring.)


In preparation for the Case Management Conference, the parties filed the following:



Initial Disclosures: These are the Initial Disclosures of Ellora’s Cave. You can read more about initial disclosures here. Note that the docket lists initial disclosures filed by all plaintiffs. I’ve been told that the defendants filed initial disclosures as well, but those aren’t on the docket for some reason (more on this later).
A report of the parties on their planning meeting and consent to the exercise of the jurisdiction of a magistrate judge.

These things are really mostly administrative. The only thing of remote interest in the two is this section in the report of the parties: “Defendant expects to file a motion for summary judgment after Plaintiff completes its discovery. Discovery shall be suspended while summary judgment motions are pending.”


First, a note on the difference between a motion for summary judgment and a motion to dismiss, and those with legal training, don’t smack me because yes, I’m not going to go into full detail here.


Motions to dismiss are generally made because a party believes the case is defective on the face of the complaint in some way (e.g., the court does not have jurisdiction, the statute of limitations has passed, or the person thinks that they’ve stated a claim, but in fact, the things that happened to them are just a bum rap, and not actionable at law). (It’s more complicated than that, but let’s just go with that.) (Obviously, there are other reasons than I’ve listed, but that’s the basic idea.)


A motion for summary judgment is generally made because a party believes the case cannot be won on the basis of the evidence that has been compiled.


By analogy: Imagine that you’re trying to figure out if a book falls in the genre of fiction labeled as a thriller. You can read the back of the book, and say, “Huh. This is a nonfiction biography of Desmond Tutu; it’s probably not a thriller.” Or you can read the book, and say, “Huh. This was not a fictional thriller; it was a biography of Desmond Tutu.” (There is nothing wrong with biographies of Desmond Tutu, but they are not fiction, and no matter how thrilling the subject matter, they also are not genre thrillers.)


A motion to dismiss will happen when you don’t have to read the evidence to determine that there’s a serious problem. A motion for summary judgment happens when you have the evidence compiled, and you can look at it and say, “Look, this doesn’t add up to what they promised in the blurb.”


So Jane is essentially saying that after Ellora’s Cave compiles all its evidence, she believes that she will be able to demonstrate that what they have doesn’t add up to what they promised in the blurb. If she can do this before she has to subpoena a bunch of people and spend even more money, all the better.


What does this mean? Well… do I have to tell you that it doesn’t mean whatever random people claiming to be legal bloggers think that it means? I didn’t think so. It means that Jane hopes that EC will not be able to prove its case once it has conducted discovery. That’s what it means. We will see.

After the Case Management Conference, the judge filed the following:



A Case Management Plan, which I still think is boring.
A denial of the temporary restraining order, which says, basically, “Ellora’s Cave filed the temporary restraining order, and then changed their mind about pursuing it, so they will not get one.”

So there you are. Boringness!


But here is one tiny thing of potential interest: the defendants’ witness list. It didn’t end up on the docket, but I’m posting it here. You’ll notice that they identify more people than the plaintiffs do, including a dear friend of ours. Or…something like a dear friend. You know.


@PubNT Twitter account


The Pub Net Twitter account has made a series of statements on Twitter since the outset of this case, that are with obvious knowledge of the case at hand.  The author behind this Twitter account will have additional information as to the operations of Ellora’s Cave.


Tina Engler


Tina Engler is the founder and head of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.


Patty Marks


Patty Marks is the CEO of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.


Susan Edwards


Susan Edwards, at all relevant times, was the COO of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.


Raylene Gorlinksy


Raylene Gorlinksy is the Publisher of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.


Whitney Mahlik


At all times relevant hereto, Whitney Mahlik was the Managing Editor of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave


Courtney Thomas


At all times relevant hereto, Courtney Thomas was the Chief Financial Officer of Ellora’s Cave and will have information and knowledge pertaining to the financial viability of Ellora’s Cave, including the payment schedules of authors, editors, and cover artists affiliated with Ellora’s Cave.


So there you are: a list of the people who will be subpoenaed in due course.


Thank you, and good night.

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Published on February 01, 2015 13:28 • 161 views