This story is over 5 years old.


Kim Dotcom Says US Withheld Vital Information at His Extradition Hearing

Kim Dotcom's lawyers say the prosecution is guilty of misconduct.
Dotcom. Photo: Greg Sandoval

Kim Dotcom got cheated, his lawyers say. So did the other three former Megaupload executives accused by the United States government of criminal copyright violations.

During an ongoing extradition hearing, which will determine whether Megaupload's management team will be sent to the US for trial, the New Zealand prosecutors who are arguing on behalf of the US Department of Justice (DOJ), were supposed to disclose information vital to the defense's case. They didn't, and they shirked their "duty of candor," Megaupload's lawyers said Friday.


Ira Rothken, Megaupload's lead attorney, said this is no ticky-tack procedural foul. In a phone interview Thursday, he told Motherboard that misconduct like this is something that could oblige the judge to reject the US' extradition request. He added: "The (DOJ) is playing games with people's lives."

The first thing to understand about the Megaupload case is that it's not the typical web copyright dispute, like those that involved YouTube, Veoh, and Limewire. Nobody at those companies had to worry about jail. The DOJ alleges Megaupload, a now defunct file-hosting service, enticed internet users to pirate movies and music while executives made a fortune off the traffic by selling ads and premium services.

If convicted of criminal copyright violations and the other charges leveled against them, Megaupload's former management team could face decades in prison.

As for the alleged wrongdoing by prosecutors, Rothken said the problem is connected to the legal procedure being used for the hearing and requested by the DOJ. It's called the "Record of the Case." With this, the normal rules of evidence and discovery don't apply. The purpose of the procedure is not to decide guilt or innocence, but to determine whether enough corroborating evidence exists to hold a trial. Under this procedure, it is assumed that the evidence presented by the state seeking an extradition is what it says it is.

The first thing to understand about the Megaupload case is that it's not the typical web copyright dispute


But there's a catch. The New Zealand Supreme Court ruled last year that "a requesting state has a duty of candor and good faith." That means evidence must be disclosed even if it contradicts the state's allegations—in fact, especially if it contradicts its allegations.

That's not what happened here, Rothken said.

He noted that Christine Gordon, the lead New Zealand prosecutor, attacked the opinion filed with the court on Megaupload's behalf by Lawrence Lessig, the Harvard Law professor who is now campaigning for US president.

"They said Lessig's opinion lacked merit, but it showed they were cherry picking facts," Rothken said. "Even if they disagreed, they should have put [our arguments] before the judge and [Gordon] never did. She should have told the judge, 'In New Zealand, we're not allowed to use fraud to try copyright cases [another assertion by the defense].' They were supposed to put it in and they didn't. They're treating this like an adversarial hearing. They have the duty to explain the facts and both sides and they're not doing that, and it's a basis to not honor the extradition request."

Dotcom's lawyer Ira Rothken at the Dotcom Mansion. Photo: Greg Sandoval

Lawyers are forever accusing one another of cheating. But in this case, with its history of potentially illegal spying, and the Apocalypse Now-like police assault on Dotcom's house, allegations of misconduct are tougher to ignore.

Prosecutors in the Megaupload case have denied that there's a single indication that a breach of faith occurred. Nonetheless, the defense has asked the judge to postpone the hearing or reject the US's extradition request.

Megaupload's lawyers urged the judge not to accept Gordon's view that the court need only concern itself with determining whether there was enough evidence to justify a trial.

Megaupload's lawyers maintain they have a right to dispute the evidence and that the judge has an obligation to ensure New Zealanders receive a fair hearing before being extradited. During his arguments on Friday, Grant Illingworth, attorney for former Megaupload executives Mathias Ortmann and Bram van der Kolk, told the judge that Gordon and the DOJ wished to "reduce your honor's role to a mere rubber-stamping exercise."

He pointed out that a hearing that didn't test the quality of evidence was useless. He reminded the court that history is "strewn with open-and-shut cases… that somehow were not."

The hearing was scheduled to be completed on Friday but because of the multiple motions under consideration, no one seems to know for sure when it will end.