EFF Replies to Most Recent Scapegoating Attempt by Righthaven CEO, Steve Gibson

On Monday, Steve Gibson filed a response to the order seeking to find Righthaven in contempt of court and imposing sanctions in the case of defendant Thomas DiBiase. In the filing, Gibson claimed that as CEO of Righthaven, he was 1.) Not party to the case, 2.) Had not been receiving notice of the happenings in the case and 3.) Had "complete legal inability" to address DiBiase's demands. Gibson then blamed the mess on Righthaven's incommunicado attorney Shawn Mangano.

The DiBiase response, submitted Thursday by attorney Kurt Opsahl of the Electronic Frontier Foundation, sheds light on Gibson's filing, starting with Gibson's excuses and misplaced blame.

Mr. Gibson offers excuses and proposals for further delays, none of which explains Righthaven’s ongoing failure to be "reasonably diligent and energetic in attempting" to accomplish what this Court ordered ... Mr. Gibson proposes that the Court place responsibility solely on its counsel of record, Shawn Mangano. Given that, as even Mr. Gibson acknowledges, Mr. Mangano is nowhere to be found, this is actually a request for Righthaven, and Mr. Gibson, to avoid all accountability ... Mr. Gibson, as CEO and the principal officer of Righthaven, has to comply with this Court’s order and purge the ongoing contempt of court.

Several pages into the EFF's reply, referring to Gibson's claim that Righthaven lacks the funds to order the debtor's examination transcript, one learns that Gibson was "obliquely referencing himself" when he stated in his filing there is "no reason to believe that one or more of Righthaven’s parents would not continue to make capital contributions." Opsahl states in the reply that bank statements show that Gibson has been "personally funding Righthaven to keep its balance just above zero."

Moreover, Mr. Gibson admits that Righthaven had access to sufficient funds to pay Mr. Mangano for months after its revenue dried up, asserting "[u]p until Mangano became totally incommunicado [mid-February 2012], Righthaven fulfilled all payment obligations to Mangano." ... Righthaven’s bank records show that Mr. Mangano was being paid regularly in installments of around $2,475.00 ... The money Righthaven will now save by not paying Mr. Mangano is more than enough to pay for the transcript of a half-day debtor’s examination. Mr. Gibson’s deliberate decision not to use funds available to Righthaven does not constitute "impossibility."

The Captain is Last Off the Ship

Opsahl then spells out -- 101 style -- what Gibson's responsibilities as chief officer are, "Righthaven should either hire a new attorney or Mr. Gibson should return to this litigation as counsel of record." Next, he pulls apart Gibson's logic of having the "complete legal inability" to represent Righthaven. Also, Gibson "voluntarily chose this attorney as his representative in the action," writes Opsahl, "he cannot now avoid the consequences of the acts or omissions of this freely selected agent."

In conclusion, "there is no question that Righthaven has not complied with the Court's order," states the reply, nor is there question that Gibson refused to accept responsibility to comply as well, despite being the sole person in charge of Righthaven. Given this, the $500 per day sanction, payable by both Mr. Gibson and Righthaven, is the "only way to coerce compliance," writes Opsahl. The reply noted that the daily coercive sanctions fee begin upon entry of the February 7 contempt order.

Now then, when Mangano will emerge from "nowhere to be found" incommunicado land, is certainly a burning question left unanswered.

See: EFF's reply to Steve Gibson in full