D. Mar. 2002 – In the Bankruptcy Court
205. On March 11, 2002, I filed for bankruptcy under Chapter 13 in the United States Bankruptcy Court for the Northern District of New York, as David Boies advised me.
206. On March 12, 2002, the day after my filing for bankruptcy had stayed all proceedings against me in the Northern District of Illinois, Boies-Schiller then sent a letter to the court in the Northern District of Illinois, requesting discovery of the recording companies’ “antitrust conspiracy” involving Trans World, on the grounds that I had “sought a license agreement with Transworld Entertainment Corporation to provide sound recordings online for a fee.”
207. In a letter sent by Boies-Schiller to the court in the Northern District of Illinois on March 12, 2002, Boies Schiller requested discovery.
208. A few days later, I heard Bill Duker object to the letter, upon learning of it, and advise George Carpinello the attorney who sent the letter, by saying, “George, Deep does not have a right to discovery involving Trans World” and “Trans World does not want to be involved in discovery.”
209. I then heard attorney Carpinello apologize to Bill Duker and promise Bill Duker that attorney Carpinello would conceal any reference to Trans World in the future, telling Bill Duker, “Sorry, Bill, I didn’t know. I won’t make any more references to Trans World.”
210. Thereafter, on numerous occasions, as attorney Carpinello had promised Bill Duker, attorney Carpinello concealed any reference to Trans World, including the need for evidence controlled by Trans World, as follows:
a. In April 2002, when recording companies appeared as creditors in my bankruptcy case to request relief from stay, for the limited purpose of permitting their pending preliminary injunction motion to be decided, Boies-Schiller appeared at the hearing on the motion as a creditor in opposition to the requested relief. Again, Boies-Schiller attorney Shaw concealed any reference to Trans World, including the need for evidence controlled by Trans World. Unaware of Boies-Schiller’s simultaneous representation of my interests and Trans World’s, the court granted relief from stay.
b. On June 21 and July 9, 2002, Boies-Schiller submitted pleadings in the Northern District of Illinois requesting that the action be transferred to the bankruptcy court. Again, as attorney Carpinello had promised Bill Duker, attorney Carpinello concealed any reference to Trans World, including the need for evidence controlled by Trans World. Unaware of Boies-Schiller’s simultaneous representation of my interests and Trans World’s, the court denied the transfer.
c. On July 24, 2002, the Boies-Schiller attorney George Carpinello appeared in the Northern District of Illinois for oral argument of the motion for preliminary injunction. Again, as attorney Carpinello had promised Bill Duker, attorney Carpinello concealed any reference to Trans World, including the need for evidence controlled by Trans World. Unaware of Boies-Schiller’s simultaneous representation of my interests and Trans World’s, the court granted the injunction.
211. During these proceedings in the Northern District of Illinois and in the bankruptcy court, Boies-Schiller never disclosed to me or to the courts that Boies-Schiller was simultaneously representing my interests and the interests of Trans World as a defendant in a related antitrust action in the District Court of Maine, and I never consented to such simultaneous representation by Boies-Schiller.
E. Nov. 2002 – My Lawyers Withdraw for Conflict of Interest
212. I brought a motion to transfer certain assets of mine as a debtor in bankruptcy, known as the “Digital Download Technology.” In support of my motion, I submitted an affidavit declaring that the parties BuddyUSA, AbovePeer and Trans World may have interests in the Digital Download Technology that are adverse to mine, and that Trans World may have an exclusive right to the Digital Download Technology.
213. Specifically, I declared in my motion:
“Various parties may have a claim, lien or interest upon the property of the estate which I seek to transfer by license agreement. Interests claimed may be as follows.
... AbovePeer Inc. ... may claim an interest in ... Digital Download Technology ...
Trans World Entertainment may claim an exclusive interest in Digital Download Technology. A copy of the TransWorld Consulting Agreement which includes exclusive license is attached hereto and made a part hereof as Exhibit ‘C’.”
214. In the bankruptcy motion, I thus described the substantively similar interests of AbovePeer and Trans World and declared that both interests were adverse to mine.
215. As a result of Boies-Schiller’s conflict of interest representing my interest and AbovePeer’s, I requested that Boies-Schiller withdraw as my lawyers in the Northern District of Illinois.
216. In a filing on September 18, 2002, Boies-Schiller moved to withdraw as my lawyers in the Northern District of Illinois, but failed to disclose its conflict of interest as grounds for withdrawal.
217. Boies-Schiller’s motion to withdraw was denied.
218. I again requested that Boies-Schiller withdraw, and further requested that Boies-Schiller disclose to the court Boies-Schiller’s conflict of interest as grounds for withdrawal.
219. However, Boies Schiller deliberately concealed its conflict of interest from the court.
220. Boies Schiller’s deliberate concealment of its conflict of interest was a fraud perpetrated upon the court that caused me to be subject to an injunction entered on October 30, 2002, that shut down my business.
221. The shutdown caused me damages when I lost valuable market share to competitors such as iTunes, the new Napster and MusicNet.
222. On November 5, 2002, after the injunction order had been granted, Boies-Schiller moved a second time to withdraw as my lawyers, this time admitting its “potential conflict of interest.”
223. Specifically, in Boies Schiller’s motion to withdraw in November 2002, Boies Schiller attorney George Carpinello admitted in a sworn declaration that he knew that “Mr. Deep and I have had further discussions concerning a potential conflict of interest that might arise from this Firm’s continued representation of Mr. Deep personally and AbovePeer Inc.” [Emphasis added.]
224. Thus, Boies Schiller knew that such conflict of interest arose from the continued representation of me and AbovePeer Inc.
225. Moreover, Boies Schiller had a duty of care and judgment to know that such conflict of interest similarly arose from the firm’s continued representation of me as a related party and Trans World as a defendant, since Boies Schiller had a duty to know from my bankruptcy motion that Above Peer Inc.’s interests were substantively similar to Trans World’s.
226. As a result of Boies Schiller finally admitting, in even this limited context, its conflict of interest to the court, Boies Schiller’s motion to withdraw was granted.
227. In all these proceedings, Boies-Schiller never disclosed to me that Boies-Schiller was simultaneously representing both my interests and Trans World’s as a defendant in a related antitrust action, and I never consented to such simultaneous representation by Boies-Schiller.
228. At the same time, Boies concealed from me his relationship with Duker and the misappropriation of my assets that he directed Duker to carry out.
VII. My Lawyers Refuse To Terminate Their Representation of Me Despite My Demands
253. Even though Boies-Schiller was permitted to withdraw from the proceedings of the Northern District of Illinois, Boies-Schiller continues to represent me even now as my lawyers in other proceedings.
254. On July 7, 2004, I “urgently” requested that Boies-Schiller further withdraw from its representation of me in the MDL Docket No. 1425, In re Aimster.
255. On July 9, 2004, Boies-Schiller wrote to me acknowledging that it would withdraw, and attaching documents “to be filed.”
256. However, as of June 8, 2005, the service list in MDL Docket No. 1425 shows that Boies-Schiller continues to represent me in that proceeding.
257. Finally, Boies-Schiller has not disclosed to me any provision for termination of its representation of me. As late as February 7, 2004, Boies-Schiller attorney Robert Silver continued to represent me by providing legal advice about my antitrust claims.
