Earlier this year, author John Van Stry granted former Pirate Party leader Travis McCrea’s wish to be sued over his eBook download platform eBook.bike. The matter is now at the discovery stage but it’s clear Van Stry’s attorney has run out of patience with McCrea. After submitting a laundry list of complaints and frustrations to the court, things are now coming to a head.
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In March, US-based author John Van Stry filed a copyright infringement lawsuit against Travis McCrea, the operator of eBook download platform eBook.bike.
To say early progress in the case was disorganized is something of an understatement. With a relatively inexperienced McCrea opting to defend himself, things were never likely to go particularly smoothly.
Nevertheless, in September things appeared to get back on track, with McCrea eventually filing an answer to the complaint, pushing matters on to the next stage. Since then, however, the plaintiff and his attorney have grown increasingly frustrated with McCrea’s alleged conduct and tactics.
Back in August during a scheduling conference, the court indicated a desire to keep costs as low as possible during the discovery process, to the benefit of both plaintiff and defendant. According to a motion to compel discovery filed by the plaintiff this week, however, McCrea is allegedly frustrating the discovery process.
“Defendant has been acting at cross-purposes with the Court; bringing all progress in the case to a standstill by providing no response to discovery requests, much less any discovery; delaying by habitually requiring weeks and numerous emails from Plaintiff before Defendant responds to simple inquiries, such as indicating whether Defendant received the discovery requests,” the motion reads.
What follows is a laundry list of complaints, too numerous to cover here in detail. In summary, however, there are many accusations that McCrea promised to do things he subsequently didn’t, including missing deadlines, failing to communicate properly, if at all, and generally bogging the process down.
Van Stry’s attorney further accuses McCrea of “needlessly” driving up costs by “propounding discovery that Defendant never collected, and proposing a settlement requiring Plaintiff’s counsel to draft an agreement quickly, and then ignoring communications from Plaintiff regarding the same once drafted.”
In respect of the settlement, McCrea is said to have proposed terms that suited Van Stry and a draft was drawn up and sent to McCrea in advance of the required date of October 11, 2019. On October 9, counsel for the plaintiff reached out to McCrea to confirm receipt of the agreement and asked when a reply could be expected.
After McCrea’s own deadline passed without communication, on October 15 Van Stry’s legal team set a deadline of their own – October 18. McCrea reportedly got in touch on the day but then requested an amendment to the agreement, which was accepted and redrafted within hours.
A new deadline of October 21 passed without communication so on October 23, counsel for the plaintiff asked McCrea, “If there is some impediment to executing the agreement, please let us know.” According to the filing, a response to that statement was never received.
“Plaintiff can only speculate why Mr. McCrea would propose a settlement, making Plaintiff’s counsel scramble in order to achieve the objective after Plaintiff agreed to the settlement, and then ignore communication regarding the same, but such speculation by Plaintiff leads only to harmful motives on Mr. McCrea’s part,” the motion reads.
According to counsel for Van Stry, McCrea “is simply failing to prioritize” the litigation he’s involved in. McCrea is reportedly moving house but the plaintiff believes that the case is “at least on par” with the former Pirate Party leader’s commitments in respect of moving and working.
To highlight that McCrea isn’t taking things seriously, Van Stry’s team indicate they have been watching McCrea’s Reddit activity, noting that he’s had time to post “over 100 times” on the platform during October and November but not deal with the lawsuit efficiently.
In closing, the author’s attorney asks the court to set McCrea a quick deadline to deliver his discovery responses.
“Plaintiff is asking the Court to recognize Mr. McCrea’s behavior as unacceptable, and asking that Mr. McCrea be given a tight and strict deadline to fully respond to the interrogatories and RFPs or face consequences,” the motion concludes.
The response from the court was swift. Two days later an order appeared on the docket ordering McCrea to take action or face the consequences.
“Because of the apparent lack of progress in the discovery process in this case and the impending deadlines for the close of discovery and the filing of dispositive motions, the defendant is ordered to respond to the motion by 5:00 pm, Central (U.S.) Time, on December 2, 2019,” Judge Bryson writes.
“In the absence of a response from the defendant by that time, the motion will be treated as unopposed, and the Court will take action based on the allegations in the motion.”
The motion to compel and subsequent order can be found here and here (pdf)
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