Gowan has filed a reply brief to the Tilt response to her motion for expedited discovery and it is a bombshell.Â It appears to utterly destroy the Tilt response and demonstrates that Tilt’s attorneys appear to be doing some very shoddy work.Â First, it attacks the challenge to the ex parte basis for the motion.Â They point out that the motion was filed under Rule 6-2 and Tilt uses 7-5 as the basis for their several pages of objection to the ex parte nature of the motion.Â The bit that I didn’t get when I first read the motion is that the only ex parte part was the application.Â The actual motion was filed normally.Â It is still a bit unclear to me if the motion was always intended to be filed normally or if the judge converted it, but I guess it doesn’t really matter.Â They also point out that the motion itself was filed with the court and delivered to oppposing counsel on the same day.Â This is pretty big, because the defense makes a lot of noise about how badly the secrecy disadvantaged them and it now appears that there wasn’t really much secrecy.
This leads to one of the worst things for the Tilt side, because it makes it appear that their attorneys have been caught in a lie to the court.Â They said that they set up the 26(f) conference without knowing that the expedited discovery petition was filed.Â However, Gowan points out that the motion was sent to them on January 29 and the 26(f) conference was scheduled on February 4.Â Most likely, Tilt’s attorneys are incompetant and didn’t get the email from the court with the motion, but the other possibility is that they were flat out lying to the judge in their response.Â Neither one is going to get a very warm reception from the judge, I suspect.
Further, if the summary of the legal research is accurate, it sounds like Tilt made a hash of that as well.Â Their brief says that the two main cases “cited to, but did not expressly adopt, a four factor test.”Â Unfortunately, according to Gowan, not only did they did not expressly adopt the four factor test, they actually expressly rejected the four factor test.Â If accurate (I’m way to lazy to pull the actual decisions), this is again either shoddy research or dishonest briefing.Â Both are bad for them.
Gowan also correctly points out that the proposed discovery is limited to only the corporate structure and ownership of Tilt and Tilt didn’t address that in their brief.Â Indeed, Tilt seemed to suggest that the discovery was going to be a big generic fishing expedition.Â Gowan points out that the discovery is needed to add defendants, remove defendants and clarify the pleadings.
I’ve changed my mind.Â I now think that the judge will grant the motion and that Tilt has lost a lot of traction.