TSR The Full & Glorious History of NuTSR

Umbran · Nov 28, 2023

LordEntrails said:
Why might it be important to any of the cases that it was public knowledge that TSR declared bankruptcy?

I presume it is part of the defense that Wizards shouldn't be allowed to stir protective order stuff now, because of the bankruptcy. As in, if I understand it, "We are in bankruptcy, and that puts the WotC suit on hold, so they can't raise this point now, because it costs money we don't have to respond to it."

The fact that it was public knowledge means WotC can't say, "Oops, we didn't know."

Mind you, the bankruptcy thing applies to nuTSR, the company, and not LaNasa, personally. So there's that complicating matters.

occam · Nov 28, 2023

Umbran said:
I presume it is part of the defense that Wizards shouldn't be allowed to stir protective order stuff now, because of the bankruptcy. As in, if I understand it, "We are in bankruptcy, and that puts the WotC suit on hold, so they can't raise this point now, because it costs money we don't have to respond to it."

The fact that it was public knowledge means WotC can't say, "Oops, we didn't know."

Mind you, the bankruptcy thing applies to nuTSR, the company, and not LaNasa, personally. So there's that complicating matters.

Right, it's not like Justin himself has declared bankruptcy, and that's who the current action is against, not nuTSR, right?

Saracenus · Nov 28, 2023

bedir than said:
Ah, yes. Ours is from 1917

(Cries in Chicago Cubs Fan)

Wincenworks · Nov 28, 2023

Deset Gled said:
WotC did not offer definitive proof that Lanasa (et al) were the ones behind the donosemora.com website, or the anonymous emails. I don't know if they have proof that wasn't shared, or if they are still fishing for info. But they did get Lanasa to swear, in a formal court document, that he didn't do it. In fact, he went so far as to say that he never uses anonymous accounts. Now, if they do manage to prove that it was him later, he'll be in even more trouble for lying about it.

They're not really required to at this stage - they put forward their explanation why they believe that he is responsible for it, then he gets to reply with his explanation why not (ie him saying "I didn't do it") and they'll get a right of reply to his reply.

This part is what's known as an interlocutory action (it's not the main decision making part of the process, but part of what gets us there) and so the expectation is for the parties to try to keep it as brief and succinct as possible so that it doesn't delay the trial, put undue hardship on the party going to trial, etc. (That said they can easily become chaos and lead to chains of actions, etc. The discovery process is infamous for creating massive legal bills due to this)

The judge is only required to rule on the "preponderance of evidence" (more likely than not) rather than beyond reasonable doubt, which has been vexing a certain former president who's been trying to do that "well, you can't prove I meant... I say I meant..." trick a lot lately. The judge may also conclude that they need particular evidence to make a ruling, and give an order for either (or both) parties to produce it.

Obvious problems for Justin in this situation is the protective order extends to anyone acting as his agent, and that pretty much nobody else in the world has any discernible motive combined with opportunity.

occam said:
Right, it's not like Justin himself has declared bankruptcy, and that's who the current action is against, not nuTSR, right?

Correct, however the Bankruptcy judge specifically declared that the stay should not interfere with this action.

So the argument being put forward is not "the bankruptcy should prevent it" but "Wizards of the Coast are deliberately abusing the process, because they are emboldened by the bankruptcy and their supporters (lol) response to it - they are just trying to drive up costs and win via attrition." Their support for this is that Don has been cooperating with Wizards so they want him to be considered part of Wizards of the Coast for the purposes of the Protective Order.

Basically it looks like Justin's lawyer knows they're backed into a corner and is trying to make the judge second guess themselves rather than risk an embarrassing interlocutory appeal or plot twist later down the line.

Snarf Zagyg · Nov 29, 2023

@Wincenworks

So I've been busy lately, but I took the time to briefly read through the response. Here are my thoughts-

1. First, this is actually well-written. In terms of just form, this isn't the usual terrible lawyering I expect from a LaNasa advocate. I think it's necessary to start with that. And form matters! Substance, on the other hand .... I have questions.

2. The first argument that is made (and the one that they repeatedly raise) is that the motion is procedurally improper. The attorney is trying to argue that the district court could have entertained the motion at any time, but instead WoTC sought (and received) leave from the Bankruptcy Court to file it, therefore it is completely improper to bring the motion. Which ... I mean, that's a logic fail to begin with. More importantly, it's the definition of chutzpah (defined as the ability of a person to kill both their parents and then plead for leniency because they're an orphan). I know that attorneys try to make all arguments, but this is a really bad one, and I think it was a bad idea to raise this one. Boiled down, the attorney is saying, "Look, this case was stayed because of the bankruptcy of another party. So WoTC went and got permission from the bankruptcy court to make sure it was okay to proceed with filing this specific motion, so ..." Reading it, made me feel that the remainder of the argument lost credibility.

3. The next argument is about the burden of proof; in essence, the motion argues (and attaches the affidavit of LaNasa) to say that WoTC can't prove that LaNasa violated the protective order. Which is the standard argument you might expect. A few problems with that, IMO. Based on my recollection, the response doesn't address all of the issues raised in WoTC's motion, which is something unlikely to escape the notice of the Court (or a reply). It's similar to a motion saying that someone kicked someone and punched someone, and the response going on for pages about how you absolutely, positively, did not kick them.

4. Next is the Free Speech argument. Ouch. Look, this is where I get worried. This is a court-entered protective order. In other words, you agreed to this protective order. Regardless of any other issues, you aren't allowed to break an order, and then later raise the FA challenge (it's called the collateral bar rule). More importantly, the citations here (and elsewhere) cite inapposite law. This is about a civil discovery violation related to a pre-existing order, not about a criminal trial, or about possible witness tampering absent a prior court order.

5. Then comes the tu quoque. "Look what the other guy did!" Okay, not to put to fine a point on it, but the protective order relates to the conduct of the parties before the Court, not the witnesses. I literally started laughing when I read that. "Hey, my guy might have violated the protective order, but you won't believe what this other guy (who isn't covered by the protective order) was doing!" I winced when I read that the attorney was trying to make the argument that the witness was covered under the protective order in a footnote. Words have meanings.

6. Then there is the bad blood argument. Basically, the attorney found a case (unpublished) and thought, "Might as well use it!" Problem was, the case has nothing to do with protective orders and is completely different. That's a case that involves witness tampering (under the federal statute) and trying to get a judgment entered a month prior to trial.

Finally, an observation- there was not just an affidavit from LaNasa. There was an affidavit from the attorney involved. This was ... unusual. Absent extreme circumstances, an attorney should never, ever, ever submit an affidavit to the Court when s/he is an advocate in that Court- because attorneys provide arguments, not facts. It's even stranger when an attorney does so to "create" a record of what they say happened during a proceeding in front of the judge that they are submitting the motion to. Either it happened or it didn't. But if the Court chooses to have an evidentiary hearing on the issues (which isn't unheard of), then the attorney has suddenly put themselves in the position of having to testify. Just a weird choice, IMO.

Anyway, I do want to reiterate that while I have serious issues with the substance, it was well-written in form. But I kept thinking as I read it, "If none of this was true, all I would have done is a short response saying (in substance), 'It's not true. See attached affidavit.'" Much like the whole, "Doth protest too much," sometimes less is more.

Staffan · Nov 29, 2023

Snarf Zagyg said:
4. Next is the Free Speech argument. Ouch. Look, this is where I get worried. This is a court-entered protective order. In other words, you agreed to this protective order. Regardless of any other issues, you aren't allowed to break an order, and then later raise the FA challenge (it's called the collateral bar rule). More importantly, the citations here (and elsewhere) cite inapposite law. This is about a civil discovery violation related to a pre-existing order, not about a criminal trial, or about possible witness tampering absent a prior court order.

So, that makes me curious. How much control does a lawyer have over what is ultimately sent to the court, even if it's against their better judgement? I mean, I can imagine the following conversation happening:

Justin: "What do they mean I can't blurt out whatever I want?"
Lawyer: "Well, there's a protective order that prevents you or your agents from saying certain things that could be considered witness intimidation."
Justin: "But what about my free speech? Tell the court I won't have any of that nonsense."
Lawyer: "That doesn't apply to the specific things covered by the order, and the judge won't be happy about you violating it."
Justin: "MUH FREE SPEECH! Just tell the court what I tell you, dammit!"
Lawyer: "(Sigh) OK..."

Could our hypothetical lawyer there have said "No, I will not."

Snarf Zagyg · Nov 29, 2023

Staffan said:
So, that makes me curious. How much control does a lawyer have over what is ultimately sent to the court, even if it's against their better judgement? I mean, I can imagine the following conversation happening:

Justin: "What do they mean I can't blurt out whatever I want?"
Lawyer: "Well, there's a protective order that prevents you or your agents from saying certain things that could be considered witness intimidation."
Justin: "But what about my free speech? Tell the court I won't have any of that nonsense."
Lawyer: "That doesn't apply to the specific things covered by the order, and the judge won't be happy about you violating it."
Justin: "MUH FREE SPEECH! Just tell the court what I tell you, dammit!"
Lawyer: "(Sigh) OK..."

Could our hypothetical lawyer there have said "No, I will not."

So, on that. I have a ... feeling ... that this particular argument was raised because of, um, a certain very prominent legal issue in the news. But different things are different. Without going too far into the weeds on this, let's put this very simply-
If there is a Court order telling you to not do X, then ...
1. You can appeal that order if you think that the order is wrong (it can be an interlocutory appeal if it's not a final judgment).
2. Or you can just violate the order and tell the Court later that it was wrong to enter it.

There are a lot of reasons that the court system really, really, really does not take kindly to people doing (2). Especially when the order was agreed-to by the parties. So for someone to say that a standard discovery order, agreed-to by the parties, was fine to violate because the order that they agreed to violated their rights... is not going to go over well. This is the classic case of where it is NOT better to ask forgiveness than permission. This is called the collateral bar rule.

As for your question, well, it's complicated. Attorneys are the agents of the client. But attorneys also have ethical duties; they have to be candid to the tribunal (the court). They cannot lie or misrepresent the facts or the law (although bad attorneys can, and will, get the law wrong). But if your client demands that you include an argument that you think is a bad one, you need to include it ... preferably after thoroughly explaining why this is a bad idea. Perhaps in writing if it's a really bad idea.

And clients lie. ALL. THE. TIME. It's weird, because you think that with the whole "confidentiality" and "privilege" thing, they wouldn't, but they do. Sometimes it's because they don't want to look bad to the attorney (?!?), sometimes it's because they think that the attorney will do better if they are lied to ... whatever. But an attorney can only work with the information that they have.

If the issues become insurmountable, and they can, the attorney will withdraw from the action citing irreconcilable differences.

Deset Gled · Nov 29, 2023

Ralif Redhammer said:
I know it feels like it's been a lifetime of his nonsense, but didn't he get specifically caught using a fake account at some point? Now, whether that would hold up in court, I couldn't say.

There have been so many fake accounts used in this saga that it's hard to keep track, isn't it? The most prominent anonymous accounts have been IDed, but not all of them. At this point, I know of at least one fake account that was positively traced back to Lanasa, a couple that are extremely likely to be him, and a handful that are from someone at the NuTSR camp but would be more or less impossible to prove it was anyone specific.

Legally speaking, one critical point is that there was already a hearing about harassment earlier where the judge basically said "I'm not going to sanction anyone now, but everyone needs to knock it off immediately." As a result, this latest motion only addresses stuff that happened fairly recently. Most of the fake account stuff, including the one that was beyond-a-reasonable-doubt Lanasa, is old enough that it wouldn't be considered now.

LordEntrails said:
Why might it be important to any of the cases that it was public knowledge that TSR declared bankruptcy?

WotC made it a specific point in their complaint that "Harassment by [Lanasa] Resumed After TSR LLC Filed Its Bankruptcy Petition." And it's worth noting that the donosemora.com went live about a week after the bankruptcy was filed. In their response, NuTSR's lawyers felt it was very important to note that NuTSR's bankruptcy was well published news, hence the documentation of outlets where it was reported. I think they're trying argue that because the news about the bankruptcy was very well known, some third party (totally not Lanasa) could have latched onto that news as an opportunity to harass Don. Personally, think it's a really thin argument, and a really weird thing to fixate on. And, as @Snarf Zagyg noted, using an affadavit from the lawyer to address this is even weirder. But it's there in the filing, so

Snarf Zagyg said:
2. The first argument that is made (and the one that they repeatedly raise) is that the motion is procedurally improper. The attorney is trying to argue that the district court could have entertained the motion at any time, but instead WoTC sought (and received) leave from the Bankruptcy Court to file it, therefore it is completely improper to bring the motion. Which ... I mean, that's a logic fail to begin with. More importantly, it's the definition of chutzpah (defined as the ability of a person to kill both their parents and then plead for leniency because they're an orphan). I know that attorneys try to make all arguments, but this is a really bad one, and I think it was a bad idea to raise this one. Boiled down, the attorney is saying, "Look, this case was stayed because of the bankruptcy of another party. So WoTC went and got permission from the bankruptcy court to make sure it was okay to proceed with filing this specific motion, so ..." Reading it, made me feel that the remainder of the argument lost credibility.

Reading between the lines on this one a little, my impression is that Lanasa's lawyers are trying to re-litigate the decision that came from the bankruptcy case in NC court. The Trustee in NC is the one who basically said he didn't care if this moves ahead. But Lanasa is obviously using the bankruptcy as a way to stave off any movement in this case. Since he didn't get the decision he wanted in NC, he's going to try it again here. Now, I know from watching enough court on YouTube that this tactic is a great way to piss off some judges. But it's also tried often enough that it must work ocassionally.

Gradine · Nov 29, 2023

So the substance of the arguments are quite bad or completely irrelevant, but then isn't the role of an advocate or attorney in a case like this to throw what they can at the wall and see what sticks? Cover as many bases as possible? Or is that, ultimately, bad legal strategy?

Deset Gled · Nov 29, 2023

Gradine said:
So the substance of the arguments are quite bad or completely irrelevant, but then isn't the role of an advocate or attorney in a case like this to throw what they can at the wall and see what sticks? Cover as many bases as possible? Or is that, ultimately, bad legal strategy?

It's not bad strategy, per se, but it's also not always optimal. Sometimes, like in the case of trying to re-litigate decisions from another court, it can annoy the judge. Sometimes, like the "free speech" argument, it can make it look like you didn't respect the judge's earlier ruling. And sometimes, like when you're trying to ask for the other side to pay legal fees (or when you're filing for bankruptcy), excessive and loquacious arguments make it look like you're just trying to obfuscate things and/or run up the legal bills

In any case, remember that no matter what the lawyers responded with, we'd probably be here picking it apart. It is what we do, after all.

TSR The Full & Glorious History of NuTSR

Umbran

Mod Squad

occam

Hero

Saracenus

Always In School Gamer

Wincenworks

Hero

Snarf Zagyg

Notorious Liquefactionist

Staffan

Legend

Snarf Zagyg

Notorious Liquefactionist

Deset Gled

.

Gradine

The Elephant in the Room (she/her)

Deset Gled

.

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