3:13-cv-00839-AA 

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Defendant’s Opposition to Plaintiffs’ Motion in Limine

David H. Madden 

Mersenne Law LLP

9600 S.W. Oak Street 

Suite 500 

Tigard, Oregon 97223 

(503)679-1671 

dhm@mersenne.com 

Attorney for Defendant Hunter HARWOOD 

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

VOLTAGE PICTURES, LLC, 

a California limited-liability company; and 

MAXCON PRODUCTIONS, INC., 

a dissolved California corporation, 

Plaintiffs, 

v.

Hunter HARWOOD, 

Defendant 

Civil Action No.: ............ 3:13-CV-00839-AA

DEFENDANT’S OPPOSITION TO 

PLAINTIFFS’ MOTION IN LIMINE

DEFENDANT HUNTER HARWOOD submits the following opposition and response to 

Plaintiffs’ Motion in Limine. For the reasons explained below, and except for Plaintiffs’ 

first request, the Court should DENY Plaintiffs’ motion. 

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3:13-cv-00839-AA 

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Defendant’s Opposition to Plaintiffs’ Motion in Limine

1. Bifurcation of Causes of Action 

Plaintiffs request that they be allowed to try their claims of copyright infringement to 

the jury, and that Defendant’s counterclaims be tried to the Court. This arrangement is 

acceptable to Defendant, and so this portion of Plaintiffs’ Motion is unopposed. 

2. Plaintiffs’ Counsel Should be Available as a Witness 

Defendant’s counterclaims involve litigation misconduct by Plaintiffs and their attorney 

of record in this case and its predecessors. Defendant does not seek to disqualify 

Plaintiffs’ counsel, but merely to obtain answers under oath to questions calling for 

unprivileged information, including for example: 

a. Number of suits filed by VOLTAGE and MAXCON (nationally and in 

Oregon) 

b. Number of DOEs sued 

c. Number of DOEs served 

d. Number, value and terms of settlements with co-DOE defendants 

e. Distribution of settlement funds among Plaintiffs, counsel, investigator 

and experts 

f. Authenticity and content of business-model document believed to outline 

improper relationship between Plaintiffs, counsel and investigator 

g. Circumstances surrounding VOLTAGE’s unauthorized subpoena issuance 

in predecessor case 3:13-cv-00295-AA 

h. Pre-suit knowledge of copyright title defects 

i. Pre-suit investigation of alleged downloading 

j. Pre-suit knowledge of discrepancy between downloading evidence and 

allegations regarding such evidence 

k. Nature and content of communications between counsel and DOEs 

identified through early-discovery subpoenas 

Plaintiffs’ counsel is well-positioned to know and testify about these matters, and 

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Defendant’s Opposition to Plaintiffs’ Motion in Limine

furthermore is the party directly obligated under Fed. R. Civ. P. Rule 11(b) and 

personally liable under 28 U.S.C. § 1927. Counsel’s testimony is thus extremely likely 

to be helpful to the Court in evaluating and deciding Defendant’s bifurcated claims, and 

since those claims will be tried to the Court, such testimony will not confuse or mislead 

the jury. 

The Court should PERMIT Defendant to obtain Plaintiffs’ counsel’s sworn testimony. 

3. Defendant Must Not Be Foreclosed from Refuting an Essential Element of 

Plaintiffs’ Proof 

Plaintiffs allege that Defendant infringed a copyright that they purport to hold. 

Defendant has alleged that Plaintiffs do not own the copyright – that they lack standing 

to assert it. Plaintiffs’ motion in limine #3 is an attempt to convert the Court’s denial 

of Defendant’s Motion for Summary Judgment into a final determination on the merits 

of an essential element of Plaintiffs’ claim. A motion in limine is an inappropriate 

vehicle to obtain Rule 56-type relief. 

In its 8-May-2014 Order, this Court did not hold that Plaintiffs together had standing 

to enforce the copyright (or, equivalently, that the two together possessed the rights 

that they claim to have). Rather, it held that it was unnecessary to resolve the question 

of “the parties’ intent” in using the ambiguous language of the purported assignment, 

because both parties are present in the lawsuit. 

However, Plaintiffs must still establish that at least one of them owned the relevant 

exclusive right under § 106 at the time of the alleged infringement, or that they had 

received an explicit written assignment of the right to sue for past infringement from 

the true rightsholder of the right at the time of infringement. Defendant is entitled to 

challenge any or all portions of such proof. 

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Defendant’s Opposition to Plaintiffs’ Motion in Limine

For example, suppose MAXCON-I claims to have owned an appropriate §106 right as 

the original author who had not alienated such right prior to the time of the alleged 

infringement. Defendant would be entitled dispute this claim by presenting evidence 

that the claimed right had been previously transferred to a third party via written 

assignment executed before both the alleged infringement and before the purported 

assignment from MAXCON-I to VOLTAGE. Such evidence would have both substantive 

relevance (showing, among other things, that a necessary party was absent from the 

action and that MAXCON-I could not have intended to transfer the right to VOLTAGE, 

since it no longer possessed such right) as well as rebuttal relevance (showing that 

MAXCON-I’s claim of authorial ownership was false). 

Even assuming (solely for the sake of argument) that the MAXCON-I–to–VOLTAGE 

assignment would have been effective despite the clear holding of Righthaven, 

Defendant can defeat Plaintiffs’ case by showing that neither MAXCON-I nor VOLTAGE 

owned the relevant right on the date that the infringement allegedly occurred and that 

the right to sue for alleged infringement has not been transferred to Plaintiffs. 

Furthermore, the Court must make a final judgment on the entire chain of title. If the 

assignment is defective, then VOLTAGE’s allegations in all of the actions where it alone 

pursued DOEs are suspect. If VOLTAGE filed such an action without MAXCON-I after it 

knew or should have known that the assignment was invalid, then it and its counsel’s 

actions in so doing provide additional support to Defendant’s allegations that will be 

tried to the Court. 

For at least the foregoing reasons, Defendant should not be forbidden to present 

evidence or argument concerning Plaintiffs’ lack of copyright ownership. The Court 

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Defendant’s Opposition to Plaintiffs’ Motion in Limine

should DENY Plaintiffs’ motion in limine #3. 

4. Defendant Should Not Be Foreclosed from Presenting Admissible Evidence 

and Arguing in Favor of His Counterclaims 

Finally, Plaintiffs seek to prevent Defendant from presenting “facts and issues related to 

non-party litigation.” 

Plaintiffs imply that Defendant will present evidence of wrongdoing by other 

litigants, and particularly producers of adult content, in an attempt to smear Plaintiffs. 

However, Defendant’s allegations of misconduct concern Plaintiffs either directly or 

by their agents/associates. Evidence of VOLTAGE and MAXCON-I’s misconduct in the 

present action, in all of the multi-DOE suits in this district, and in all of the multi-DOE 

suits in other districts for infringement of the same copyright at issue here, is clearly 

relevant and admissible on the question whether VOLTAGE and/or MAXCON-I have 

engaged in the abusive litigation tactics proscribed by Fed. R. Civ. P. 11 and 28 U.S.C. § 

1927. 

The Court should DENY Plaintiffs’ motion in limine #4 to the extent that it would 

prevent introduction of evidence of Plaintiffs’ activities in connection with the very 

same copyright issues in this case. 

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Case 3:13-cv-00839-AA Document 60 Filed 07/03/14 Page 5 of 7 Page ID#: 479
3:13-cv-00839-AA 

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Defendant’s Opposition to Plaintiffs’ Motion in Limine

Conclusion 

For the foregoing reasons, Defendant respectfully requests that the Court GRANT

Plaintiffs’ Motion in Limine #1, and DENY numbers 2–4. 

Respectfully submitted, 

3 July 2014 

Date David H. Madden, SBN OR080396

Attorney for Defendant Hunter HARWOOD 

Mersenne Law LLP

9600 S.W. Oak Street 

Suite 500 

Tigard, Oregon 97223 

dhm@mersenne.com 

(503)679-1671

Case 3:13-cv-00839-AA Document 60 Filed 07/03/14 Page 6 of 7 Page ID#: 480
3:13-cv-839-AA Certificate of Service 

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the document 

entitled: 

DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION IN LIMINE 

was served upon the parties listed below on the date indicated, 

 by handing it to the person; 

 by leaving it at the leaving it at the person’s office with a clerk or other person in 

charge or, if no one is in charge, in a conspicuous place in the office; or if the 

person has no office or the office is closed, at the person’s dwelling or usual 

place of abode with someone of suitable age and discretion who resides there; 

 by mailing it to the address indicated; 

 by leaving it with the court clerk; 

 by electronic filing notification (PACER); or 

 other: by electronic mail to crowell@kite.com 

Carl D. Crowell, Esq. 

Crowell Law 

943 Liberty Street S.E. 

P.O. Box 923 

Salem, Oregon 97308-0923 

Attorney for Plaintiffs VOLTAGE PICTURES and MAXCON PRODUCTIONS 

Date David H. Madden

Case 3:13-cv-00839-AA Document 60 Filed 07/03/14 Page 7 of 7 Page ID#: 481