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Message: <blockquote data-quote="Snarf Zagyg" data-source="post: 9204688" data-attributes="member: 7023840">[USER=7038835]@Wincenworks[/USER] 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.</blockquote>

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