A Midnight Train to Georgia: Sanity's return.

Patel Hearing, Part Three:  Closing Arguments.

After ripping our heroes a new one, Judge O'Kelley announced that it was time for closing arguments.  Chintella, Duffy, and Nazaire would each have fifteen minutes to briefly sum up their case. Chintella would go first, followed by Duffy, followed by Nazaire. And they would start, right, now.

Chintella

So Chintella stood up and said that he took the case because he felt it was socially important, but that after more than a year he and his client were looking forward to its conclusion.  He described the case as complex and felt that should count in his favor. Finally, he considered the case to have been a good learning experience and appreciated the opportunity.

As far as closing arguments go...well, I'm in no position to judge.  But it did have two essential qualities.  It was brief (8 minutes start to finish) and relevant (it addressed the question of whether he should be awarded attorney fees).

In response, Judge O'Kelley fussed at Blair for becoming emotionally invested in this case. He said that an emotionally compromised attorney is no better off than an attorney who represents himself.

He then indicated that Duffy should begin his closing argument.

Duffy

Duffy decided that now was a good time to start making a case. He went over copyright law and addressed the forged signature issue (namely that it was irrelevant).  At a guess I would say he gave an identical closing argument at another hearing.  Judge O'Kelley asked a question about standing, but I'm not sure what the answer was.

Next, Duffy argued that Chintella was keeping the case alive in hopes of getting sanctions out of them sanction.  Without pausing for breath he then complained that Chintella's recent attempt to convince them to settle for $38,000 was ridiculous.

The irony of that statement was not lost on Judge O'Kelley.

Judge O'Kelley: That's sort of the inverse of what your firm was doing at the beginning of this case, is it not?
Paul Duffy: Well, yeah, in a way.

They (Duffy and O'Kelley) then moved onto the subject of metadata.  Just what was Duffy's role in creating the documents submitted to NDGA.  Once again, Duffy took a page from Nazaire and characterized it as "boiler plate".   O'Kelley pressed for details and surprisingly Duffy gave them up, saying that he would provide most of the content and the defense attorney would sign them. O'Kelley said that wasn't exactly his idea of "boiler plate".

Nazaire, redux.

Once Duffy was finished mumbling, it was Nazaire's turn and I'm sure everyone reading this will be shocked to learn that he still had a lot on his mind.

Nazaire's closing argument was pretty much a repeat of his previous arguments only shriller and with a greater emphasis on racism. The one new argument that he shouldn't be sanctioned because fraud on the court is not the same as fraud against a person.  His closing point was that Chintella shouldn't be awarded sanctions because he has already made a ton of money on the case.

Judge O'Kelley pointed out that that wasn't how sanctions worked. Then he started asking questions.

O'Kelley asked Nazaire about the depositions that had been scheduled. Had anyone shown up? Nazaire claimed Lutz was going to attend the August 21st deposition until Chintella unilaterally rescheduled it for sometime in September. Which made Nazaire feel that the whole thing was a farce so Lutz didn't attend at all.

"But did YOU show up?" Judge O'Kelley asked.

Nazaire said he had no intention of showing up at something so that people could later point and laugh at him.¹

Next, O'Kelley asked about Discovery. Had Nazaire produced all that was asked of him? Nazaire contended that there had been too much asked and that he couldn't of possibly....blah, blah, blah, blah, blah. He had forked over a copy of the copyright assignment and some answers to the interrogatories.

Judge O'Kelley then gave the defense< the opportunity to rebut Nazaire's claims. Chintella² pointed out that there were supposed to be two depositions. One of Mark Lutz (scheduled for August 21st) and one of AF Holdings (scheduled in September). He further pointed Paul Hansmeier had attended a deposition as AF Holding's representative in another case.

Nazaire found this preposterous. Mark Lutz was the owner, so who else would show up on behalf of AFH? And whoever heard of depo-ing a company anyway?

Judge O'Kelley pointed out that deposing a company was very doable.  Then his attention returned to Chintella.

Judge O'Kelley:  Have you deposed Mark Lutz before?
Blair Chintella:  No. No one has.

A long, heavy silence filled the court room.  The kind of silence nobody in their right mind would break. Fortunately we had Nazaire on hand.

Nazaire: Lutz is the owner.  Nobody has said otherwise.  This is a closed case, I'm not being paid.

O'Kelley pointed out that while the case may be dismissed, it was and always has been active.

A Somber Monologue

O'Kelley's next question concerned the picture. It wasn't an actual picture. Was Nazaire even sure it was him? Nazaire said that he was. That his name was found under it on FightCopyrightTrolls.

After considering that for a moment, O'Kelley said that he didn't have much to do with the Internet; that he considers it to be the worst thing to have happened.  He called it a haven for cowards to attack others and says that there are so many more problems now that didn't exist before the digital age.  But, he concluded, that was neither here nor there and the problems in this case could not be entirely blamed on the Internet.

He went onto say, once again, that he was not pleased with how this lawsuit has gone since the day it was filed. Furthermore, he believes that Duffy did more than just provide boiler plate to Nazaire.

He then said that the court would take it under advisement and that a written order would be issued.  With that, court was adjourned.

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Afterward

"I am so sorry I caused you to draw attention to yourself." Blair said.

Less than five minutes had passed since Judge O'Kelley had left the room.  Blair, Graham, Oralea and I were gathered around the defense table.  Nazaire glowered at us from the plaintiff's side. He looked like a bullfrog. Duffy was gathering his things.

"Its OK.  I came up to you before you spoke to me."
"I'll take you up on that Mountain Dew now." he said and I passed it over.
"Hey! No food or drinks in the court room!" Graham said.

With that we went our separate ways.  I'd originally planned on staying and geocaching but playing a bit part in the hearing kinda blew that idea clean out of my head.  Instead, I got into my car and left town....like a bat out of Hell.

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¹ That's how he put it, too. I swear, at times, his speech patterns reverted to that of a seven year old.
² In this portion of the hearing, Blair was far more effective. He seldom spoke, but when he did, he was concise and on point.

A Midnight Train to Georgia: Nazaire Strikes Back.

The Bullet Point: Oh. My. God.

When Judge O'Kelley took his seat after lunch two things happened. The first was that Chintella's witness made his way to the stand, and the second was that Judge O'Kelley waved him back.

"Sit down, Mr. Syfert, I've got a couple of things that I'd like to say that might make further testimony unnecessary."[Pause]"In an effort to expedite this hearing I have decided to issue some partial findings..."

O'Kelley then launched into a now-familiar spiel about how the case had gone on too long and but that he was very concerned about the issues raise. However, he continued, his case load was too heavy for this hearing to go into a second day. So, in hopes of expediting matters, he was going to break tradition once more and issue some partial findings.

Long speech short, Judge Wright's findings of fact (specifically paragraphs 1-6, 8, & 11) have been adopted by the court. Their associated evidence is also in by preclusion.   Judge O'Kelley then asked, in a tone that was almost grandfatherly, if that made a difference to how Chintella wanted to proceed.  

Chintella, Yes.  Absolutely.  Ummm...what's the docket number Judge Wright's case again?

Five minutes later, with Chintella having still not been able to remember the order O'Kelley was talking about, a ten minute recess was called. To be clear, O'Kelley wasn't angry. He'd just dropped a bombshell and it was only reasonable that Chintella would need a few minutes to regroup. I, on the other hand wasn't feeling so reasonable. As soon as he was out the door, I went over to Chintella and hissed, "It's the Star Trek Ruling!".

Chintella: "Oh yeah!"  

No sooner had I returned to my seat he looks at me and asks, 

Chintella: "What's the docket number on that?"
Me: "IDK! Google it. It's on Popehat!"
Chintella:  There's no wi-fi in here. But I've got it on my computer. I just can't remember which one it is.

Oh, FFS. I so didn't want to be seen loitering around the defense desk, but...

Me:  What Operating System are you on?   7?  Okay, hit start.  You see the search feature...type in....

A couple minutes later we have a Star Trek Ruling.

Chintella: Sorry, I'm just so exhausted.
Me: Would you like a Mountain Dew? I've got one in my bag....
Chintella: Love one. But maybe after the hearing.
Marshall: All Rise!!!!

The next few of minutes were quite productive. Chintella requested that a couple of items be admitted. One was paragraph 7 of the Star Trek ruling. The other was a document showing that the Anti Piracy League Group (signed by Duffy) was part of Prenda. These things were accepted into evidence. With that, the Defense rested.

O'Kelley then turned the floor over to Duffy who made his patented statements about how he wasn't involved in this case and how that wasn't actually his signature on one of the documents Chintella had admitted into evidence. O'Kelley took Judicial notice of these things and that was it. There were no questions about the copyright assignment but it clear (by his own omission) that he didn't have it with him. Then it was Nazaire's turn.

Judge O'Kelley asked how much time would Mr. Nazaire need. Nazaire said he requested/required equal time as Blair Chintella had used. The man was STEAMED.

At this time it was almost 2pm.  Heh.

Nazaire's turn....

[I must apologize in advance.  My notes are a bit shaky where this portion of the hearing is concerned.  Partly this was because of the speed at which questions were asked, partly because of the content, but mostly because I was so caught up in the action, I kept forgetting to take notes.]

Nazaire's first witness was Graham Syfert.  While Nazaire didn't request to treat Graham as a hostile witness he was a very hostile attorney.  One of his first questions was:

"Are you licensed to practice law in Florida?"
"Yes I am."
"Are you licensed to practice law in Georgia?"
"Yes I am."

Well now, THAT was not what Mr. Nazaire was expecting.  You could almost hear his mouth snap shut.  It took him a moment to decide how to proceed.  Then the questions started coming faster than I could take notes.  We really need to get a hold of the transcript. 


Nazaire wanted to know about the crowdfunding project.  Only he called it the "crowdfunder".  Syfert said he wasn't aware of any "crowd funders" but, after a pause, he answered the question that he knew Nazaire was asking.  Yes, there were a couple of crowd funding projects.  No, he didn't know how much was raised and he didn't know the inner workings.  

Then, this happened

Nazaire: Do you know who those two young women are over there? (This was said with a look and gesture in our direction)
Inner me: Oh shit.
Syfert (clearly taken aback): Ummm..I know who one of them is. The other is barely an acquaintance. I think her name is, uh, Kat?
Nazaire: Is SHE a donor?
Chintella: Objection...
Syfert and Chintella at the same time: I/he has no personal knowledge of this.
Judge: Sustained.

Then the floor is returned to Nazaire who moved onto questions about Twitter.  Did Graham use twitter?  Yep.  Did he tweet to Chintella? (Yes)  About Nazaire? (No)  Did he ever tweet under Chintella's account? (No!)

Nazaire: I saw you speaking with Mr. Chintella during the recess.
Syfert: Yes...
Nazaire: What were you talking about?
Syfert: I was giving him advice.
Nazaire: Legal advice?
Syfert: Advice on how to conduct himself in the courtroom.

The judge interrupted and wanted to know what Nazaire's point was. Nazaire said that if he was going to be sanctioned for receiving assistance with the case then Chintella should be as well. Okay.

Things get a little Crazy(ier)

The next topic of discussion was DieTrollDie. Nazaire wanted to know who ran it. Then he asked, "Have you ever seen me on that site?" Once again, Syfert was taken aback and said he hadn't. Oh really, Nazaire said. Let me refresh your memory. He brought out his laptop and showed Graham a picture that we in the gallery couldn't see at first. Graham pointed out that this wasn't the DieTrollDie website. Nazaire corrected himself. It was FightCopyrightTrolls.

Then he walked around to the bench to show the image to the judge, which allowed me to get a glimpse of the screen. It wasn't a photograph. It was one of John Henry Lawyer's images. I believe it was this one. I could be wrong. Judge O'Kelley was somewhat nonplus at the image. He was expecting an actual photograph.  Nazaire pointed out that it was "blackfaced because apparently African Americans can't be good lawyers²."  Judge O'Kelley didn't entirely buy that argument and Chintella objected based on authenticity, but it got admitted into evidence none the less.

Then Nazaire called Chintella to the stand. Chintella didn't want to go. He'd testified back in January. The Judge was in agreement with him. Judge O'Kelley said that he has a problem with case lawyers taking the witness stand but, in the end he acquiesced.  However, he also cautioned Nazaire to keep his focus narrow and specific.

As I said before, Nazaire had a lot on his mind.

About those two fundraisers...how exactly did that work? [Kat note: One was for the transcript; the other, discovery]. How much was requested? Raised? Who was K'Tech? Did he ever tweet from the Chintella Law account?

Nazaire then accused Chintella (to the judge) of double dipping. Of raising money for the transcript and intending to "sell copies of the video taped deposition out of the trunk of his car." He said that Chintella was telling his friends [presumably me, Syfert, Oralia, and Andrew Norton] to point and laugh and say mean things about him on Twitter so that the courts would think he is a bad guy and sanction him.

Sanity, thy name is Judge William O'Kelley

It was around this time that O'Kelley had had enough.  This wasn't relevant and it wasn't going anywhere and he had had it.

Judge O'Kelley: In 45 years on the bench I have never seen such acrimonious personalities in my court room. I want to sanction and admonish everyone in this room. You're acting like children in a sandbox.
Jacques Nazaire: I apologize, Your Honor.
Judge O'Kelley: That's another $100.00.³

Then Judge O'Kelley started asking Nazaire questions about the preparation and submission of documents. Nazaire stuck to his story about him getting the boilerplate from Duffy and then filling the content in himself.

There was then a long discussion about meta data with Nazaire insisting that multiple people could handle and modify the file without "author" portion of the meta data. Chintella, in one of his better contributions of the afternoon, pointed out that meta data changes when you convert a file's format.

Then there was another question about the copyright. Where precisely did Nazaire get it again?
Nazaire said that Brett Gibbs (?) had sent it to him.

Judge O'Kelley: Oh so you did have other attorneys working with you.

[Wait, was that a zinger?  Yes, I think it was.]

To be concluded in Part 3.

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1 I was sitting next to Oralia.
2 Edited to add: If your reaction to reading this was, "wait a minute....Nazaire is black?", you are not alone. Everyone who got the extra abbreviated version of the story the night after the hearing said the Exact. Same. Thing.
3 The next time Nazaire "apologized", O'Kelley looked like he had just sucked a lemon.

Preview of Part 2

Shit gets real.

Judge O'Kelly:  "The tab is adding up."
Jacques Nazaire:  "I apologize, Your Honor."
Judge O'Kelly:  That's another $100.00.

~~~~~~~~~~~~~~~~~~~

Then it gets awkward

Jacques Nazaire: "I'd like to know who those two young ladies are right over there." /points.
Inner me: Oh, shit.

Stay tune!

A Midnight Train to Georgia

Prelude:

"Ma'am, there is no food or drink allowed in the court room." the security guard said.
"Yeah, I know, I was planning on leaving it here and eating it during the first recess."
"I'm going to need you to take a sip of the liquid in that bottle."
"Really? Its an unopened mountain dew...?"

Courthouse Security was a lot tighter than it had been in January. It was also a lot more reluctant to hold onto my stuff. In the end I got to keep my breakfast, including the mountain dew, but was warned against opening it in the court room.

"Where are you going today?"
"Judge O'Kelley's courtroom."
“Elevator is to your right. Judge O'Kelley's court room is on the third floor.”

Yup, I went there. I came, I saw, and now I'm back.

Matrons, Patrons, and Gender Neutrons: This is Part One of your Patel Hearing Report.

The bullet point:  Oh, Dear God.

Today's hearing began at 10:00am and lasted until 3:15 with a lunch break in the middle. With so much happening its impossible to explain in detail. Instead I will summarize and then take questions on specific points in the comments.

Requiem for a Dream

As it happened I was not the last one to enter the court room. That honor goes to Paul Duffy who was ten minutes late (I was on-time). This did not go unnoticed.

"Normally,” Judge O'Kelley intoned in a deep Georgian accent, “when someone is late to one of my hearings, I will count the number of people sitting the court room and assign a reasonable hourly rate to each of them¹. The late party is then sanctioned for their time. I have done this for 45 years, but we have too much else to go over, so I won't today."

Perhaps if the Judge had known that Duffy had filed a 13 page response to O'Kelley's original OSC document at 10:05am he might have felt differently.² A girl can dream.

Georgia On My Mind...but maybe not quite enough.

O'Kelley then proceeded to request an outline of what Blair, Duffy, and Nazaire were going to cover, the number of witnesses they were going to call, and the amount of time he expected this to take.  Blair said that he had one witness and would need 30 minutes. Duffy said he had no witnesses or plans to make a presentation. Nazaire also had a witness and quite a lot on his mind.

Blair, as the first movant, had first dibs at the podium. He held it for two (often agonizing) hours.

As his first witness, Chintella called Jacques Nazaire, himself. Blair then proceeded to quiz him on his work for Prenda. Who contacted him? (Karl Singlepery[sp?]) When? How? What did he do to confirm their identity? How many cases did he handle on their behalf? Had he collaborate with either Gibbs or Duffy on his filings?³

The judge had questions of his own. Did Nazaire handle settlements? (No). Had he conducted any sort of investigation of his own to ensure that that the people he was filing suits against really had committed these crime? (No, he wasn't required to and he didn't have the expertise). Had he seen the original copyright? (No, he had only looked it up online, which is all the law required⁴).  Had he, Jacques Nazaire, made any attempt to settle the case before Blair Chintella came on the scene? (No.)

As for the copyright? Nope, they didn't bring the original, and they made no effort to explain why.

Despite these moments of productive interrogation, overall it felt as though Chintella was using Nazaire as a proxy for getting documents admitted into evidence and since most of that evidence had to do with other cases, Judge O'Kelley was neither impressed nor interested. The point of the OSC, he said repeatedly, was for him to determine the amount of attorney fees and/or sanctions that should be awarded IN THIS CASE, and if Blair would kindly stay on point that would be very much appreciated. :-)

Sadly the OCD was strong in Blair and despite repeated requests to stay on topic,⁵ he just couldn't stop himself from talking about the various illegal and unethical activities that Prenda had propagated nationwide. To be fair, whenever O'Kelly asked Blair what he was trying to prove (this happened every five minutes or so), Blair would tie it back to something mentioned in the Order to Show Cause order, but after two hours, two witnesses⁶ and with no end in sight, Judge O'Kelley had had enough and called a lunch break.

Intermission: Lunch.

Across from the court house, on the corner of Spring Street there is a little mini-mall type place. Inside, on the left, is an eatery. Although their potato salad leaves something to be desired their meatloaf sandwich is to die for, and I have it on good authority that the Reuben is quite tasty as well.

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¹CYA time: I realize that email notifications can be delayed or go unnoticed for a period of time. However, I did a Pacer Check at 9am and document 132 did not exist. Therefore, sometime between 9am and 10am when he SHOULD have been getting ready to appear in court, Mr. Duffy was working an 11th (12th?) hour filing.

² How this hourly rate was determined was never explained.

³ On this point Nazaire was admanant, almost indigent that he and only he was responsible for the filings. Yes there was a boilerplate provided by Paul Duffy, but he, Jacques Nazaire was fully responsible for the content within.

⁴To which Judge O'Kelley responded, “I will tell you what the law requires when I make my ruling.”

⁵ Perhaps the most painful moment in the hearing was when Judge O'Kelley told Blair was that he had been interested in interested in what Prenda was doing nation wide until it became clear that Blair didn't know what he was doing.  This was in open court, and in front of Blair's own witness.

⁶ More on Witness #2 in part 2.

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