Don’t Throw a Fit Over Your Opponent’s Arguing that Your Tactics Are a “Bastardiz[ation] of the Litigation Process,”

especially when your client is a pornographer accused of litigation extortion. From Barker v. Patrick Collins, Inc. (W.D. Ky. July 19, 2013):

Barker and Hutchinson have brought suit against five companies, Patrick Collins, Inc., Malibu Media, LLC, Raw Films, Ltd., K–Beech, Inc., and Third Degree Films, who allegedly are pornography distributors. … The plaintiffs claim that the defendants have obtained their contact information and demanded that they pay money in settlement of a claim of copyright infringement for allegedly illegally downloading the defendants’ protected pornographic materials using file sharing technology such as BitTorrent.

In order to identify the purported infringers, the defendants allegedly hired Intellectual Property Protection, Ltd. (“IPP”), a British company, to monitor certain websites and Internet locations for BitTorrent activity. It is alleged that once an IP address was identified as utilizing BitTorrent to download files, the IP address was recorded and forwarded to the plaintiffs. The plaintiffs claim that the defendants have joined together and filed “bill of discovery” lawsuits in the Florida state courts in which they have obtained “mass subpoenas” issued for the Internet service providers associated with the harvested IP addresses to obtain the names and addresses of individuals associated with the IP addresses.

The plaintiffs claim that the demands for money in settlement from them, and from others similarly situated, were fraudulent and coercive, harassing them to pay or be publicly exposed as downloaders of pornography. The plaintiffs contend that the defendants had no proof that the plaintiffs downloaded any of the defendants’ materials….

We first address the defendants’ motion to strike certain language from the plaintiffs’ reply brief…. [D]efendants take umbrage at the characterization by the plaintiffs of the defendants’ use of “pure bill of discovery” lawsuits in Florida and “ ‘reverse’ federal class action lawsuits” as a “bastardiz[ation] of the litigation process.”

The defendants contend that the use of the term “bastardize” is “cursing,” and (1) is crass and undignified language which does not belong in the federal courts; (2) impugns the character of the defendants; and (3) calls into question the wisdom and good reputation of judges who have ruled favorably to the defendants in such cases. [The court goes through various court opinions that have used “bastardize” to refer to alleged “corruption or debasement of a principle,” and concludes:-ed.] [T]he court finds no ground upon which to conclude that the particular use of the term “bastardize” by plaintiffs in their brief was impertinent, scandalous, or otherwise improper.

Finally, to the extent that the defendants take issue with the vehemence with which the plaintiffs state their opposition, we note that the defendants, alleged pornography distributors, rely heavily upon the protections of the 1st Amendment to engage in their business. To strike the term “bastardize” on the ground that it offends the sensibilities of these defendants would be, in this court’s view, somewhat ironic. The motion to strike certain terminology in the plaintiff’s reply brief (DN 25) is DENIED….

My sense is that courts are rarely thrilled by motions to strike allegedly “scandalous” language; such motions generally take up the court’s time (and clients’ and adversaries’ money) without materially advancing the merits. Lawyers should thus be hesitant to file such motions, especially when the language is relatively mild, and doubly so when the lawyers’ own clients are considerably racier than the allegedly offensive terms. Perhaps the identity of the lawyer’s client shouldn’t matter to judges — one can certainly imagine an argument that even pornographers might want to insist on decorum in litigation, and of course the First Amendment applies only in a highly attenuated sense to court papers. But surely one can anticipate that, even if a convent’s complaints about the term “bastardizing” might possibly get some sympathy from the judge, pornographers’ complaints will more likely get mocked.

The motion, if you want to read it, is here, complete also with a massive overreaction to a throwaway line in a plaintiffs’ brief that said, “Obviously, counsel for the Defendants are not Biblical scholars”; the full context was,

Obviously, counsel for the Defendants are not Biblical scholars. They seize upon the word “genesis” and boldly state that this reference to the bill of discovery lawsuits annihilates Plaintiffs’ motion to take early discovery. While the genesis of this case, the beginning, was a bill of discovery lawsuit, filed in Florida, the crux of this lawsuit is the extortion, based upon the bastardization of the litigation process and the total disregard for the court system by the Defendants.

This is an object lesson for young lawyers, it seems to me, in how it’s a mistake to take up a judge’s time and your client’s money with these sorts of motions. Save your complaints about opposing counsel for something really serious.