Monsarrat v Zaiger/ Encyclopedia Dramatica
Part 2- The Showdown


Monsarrat v Zaiger/ Encyclopedia Dramatica  
Part 2 - the Showdown  

See the earlier adventures in Part One, here.

Update July 18, 2017:  Today the scheduling hearing was held in the lawsuit that Jonathan Monsarrat, a video game developer, filed against Brian Zaiger, alleged owner of Encyclopedia Dramatica, a smear and harassment website.  Jonathan Monsarrat claims that several of his copyright-registered works were infringed on the website.

  These are the minutes of today's scheduling conference:

Electronic Clerk's Notes for proceedings held before Chief Judge Patti B. Saris: Scheduling Conference held on 7/18/2017...parties filed separate 16.b statements. Court set the following deadlines: Initial Disclosures 8/1/17; Discovery 1/12/18; Motions for Summary Judgment 2/12/18; Opposition due 2/26/18....Summary Jgm Hearing set for 3/22/2018 02:30 PM in Courtroom 19 before Chief Judge Patti B. Saris. Parties do not agree to ADR at this time. (Atty Goren, Atty Randazza, Atty Wolman by telephone)(Court Reporter: Lee Marzilli at leemarz@aol.com.) (Molloy, Maryellen)

What does all that mean?  There was a scheduling conference with Chief Judge Patti B. Saris.  The three attorneys appeared by telephone. Attorney Goren represents Jonathan Monsarrat.  Attorneys Randazza and Wolman represent Brian Zaiger.  The "parties filed separate 16.b statements," which means the parties were not able to agree upon even the most basic timeline.  

"The parties do not agree to ADR at this time."  "ADR" is alternative dispute resolution.  That means it is a way of trying to resolve a dispute without going to trial.  One of the two main types of ADR is mediation, where the parties meet with a mediator to see if they can agree upon a resolution.  If they do agree to a resolution, it will be written up as a binding agreement or contract and submitted as a court order, where the court will have jurisdiction to enforce the agreement. The other main type of ADR is arbitration. In arbitration, the parties submit themselves to one of more arbitrators who hear evidence and make a binding decision for the parties.  That decision is also turned into a court order and enforced by the court.  The main difference between mediation and arbitration is that in mediation, the parties are free to fashion their own solution, or to walk away with no resolution, while in arbitration, the arbitrator(s) will make a mandatory binding decision.  Many lawyers say arbitration is foolish since it is like a trial, but without the proper rules of evidence and without proper procedures and protections.  On the other hand, arbitration is a lot less expensive than a court trial and much faster, too.  In this situation, the parties do not want to engage in ADR, probably because both of them think they are going to win their planned Motions for Summary Judgement.

The Court also set deadlines.  Initial Disclosures are due 8/1/17.  These disclosures are a list of mandated revelations of fact regarding the parties and the situation. 

 Discovery deadline is 1/12/18/.  Discovery is a process of requesting items from the other side, such as documents, receipts, website logs, etc.  

Discovery also includes depositions, which is where one side calls a party or witness from the other side to be questioned under oath.  Depositions are usually held in a law office conference room.  Depositions have a court reporter present.  The depositions are turned into transcripts.  Often, a deposition will be used to "impeach" a witness at trial, in other words, try to prove that a witness has changed their story since the deposition.  Depositions are extremely expensive.  The costs include the lawyers, the space, the court reporter, and the transcripts.  Many times, parties will decide to settle after some depositions, usually because it becomes apparent just how weak someone's case is or how strong someone else's witnesses are.

Motions for Summary Judgement are due on 2/12/18, with the oppositions to those motions due on 2/16/18.  It sounds as if both parties intend to file a Motion for Summary Judgement.  A Motion for Summary Judgement is when one party claims that there are no issues of material fact and that they are entitled to judgement in their favor as a matter of law.  

Motions for Summary Judgement are rarely granted, for several reasons. First, there are almost always issues of material fact.  Second, courts scrutinize a Motion for Summary Judgement very carefully before granting one, since a good many of them are appealed.   

In this case, it looks like there will be cross motions, meaning each side will be filing a Motion for Summary Judgement. The hearing on the motions will be on 3/22/2018 at 2:30 PM in Courtroom 19 before Judge Patti Saris.

What is likely to be in those motions?  Jonathan Monsarrat laid out in his complaint that he has a court order from a previous time these same copyright registered items were published on Encyclopedia Dramatica.  That court order named someone called Hannah Rosenbaum.  Mr. Monsarrat will most likely be stating in his motion that Ms. Rosenbaum was a representative of the Encyclopedia Dramatica website and that she and Mr. Zaiger are in privity, meaning they represent the same entity.  Mr. Monsarrat will need to use Discovery to find who Ms. Rosenbaum is and what is her relationship to the site and to Mr. Zaiger.  If she is or was any sort of Admin for the site, Mr. Monsarrat might have a chance at the Summary Judgement in his favor.


Brian Zaiger's Motion for Summary Judgement is likely to claim that the use of the items is Fair Use as critique or commentary.  Considering there is a prior court judgement relating to use of the items, the Fair Use argument is weakened, even though his name is not on the previous court order.  The court order apparently covers the exact identical items.

That brings the case to the end of March, 2018.  If one party is granted Summary Judgement, the case will end, but the other side can appeal the judgement.  If neither party is granted a Summary Judgement, the case will move on to the trial phase.  If there is a trial, the earliest that would probably be would be the Summer of 2018, a year from now.

This will be interesting to watch.

 🍎🍏🍎🍏

This is part 2 of the Big Movement Game where Boston game developer Jonathan Monsarrat is trying to smack down Encyclopedia Dramatica's shitposter overlord, Brian Zaiger, over alleged unauthorized use of Monsarrat's registered Copyright materials on the site.  In this episode, Monsarrat has filed an Answer to Zaiger's Counterlaims, as you can see below. The Answer is mostly admissions and denials of the statements Zaiger made in his Counterclaim, which you can read back at the earlier post HERE.

Monsarrat also adds his own Affirmative Defenses to the Counterclaims.  The only one I find curious, and I have to look into more, is the Third Affirmative Defense, where it is claimed that Zaiger lacks standing to make any of his Counterclaims.  On the face of this, to me this looks like an attempt to force Zaiger to admit he owns Encyclopedia Dramatica (ED) or to state who does own it.  If Zaiger is claiming to be not responsible for what goes down at ED, then he would not have standing to make Counterclaims on behalf of ED.  I could be wrong, but that is how I see the Third Affirmative Defense.  On the other hand, if Zaiger has no responsibility for ED, why is he a defendant?  This door swings both ways and is likely to hit someone hard.  Zaiger claimed in a recent Reddit AMA (Ask Me Anything) to be the owner of ED.  He also claims that his business is being ruined by the lawsuit.

What's Next? The Court has ordered a Scheduling Conference with the judge on July 18, 2017.  Such a conference is where the schedule for motions and discovery is laid out, with a tentative trial date planned.  Before that Conference, it is possible either party might try for a partial Motion for Summary Judgement, though in such a fact-intensive case, the success of any such motion is unlikely.  A motion for summary judgement states that there is no issue as to material facts and that, as a matter of law, the movant it entitled to judgement.  There is almost always a dispute as to facts, which makes the granting of summary judgements rare.


No comments:

Post a Comment

Comments are moderated. Please do not post misinfo, threats, personal info, etc.