EFiled: Sep 07 2023 04:13PM EDT

Transaction ID 70815698
Case No. S22C-10-012 RHR
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JOHN PAUL MAC ISAAC, )

)
Plaintiff, )
)
v. ) C.A. No. S22C-10-012 CAK
)
CABLE NEWS NETWORK, INC., )
et.al., )
)
Defendants. )

PLAINTIFF/COUNTERCLAIM DEFENDANT JOHN PAUL

MAC ISAAC’S OPENING BRIEF IN SUPPORT OF HIS MOTION TO
DISMISS DEFENDANT/COUNTERCLAIM
PLAINTIFF’S COUNTERCLAIMS

/s/ Brian R. Della Rocca /s/ Ronald G. Poliquin

Brian R. Della Rocca, Esquire Ronald G. Poliquin, Esquire
Admitted Pro Hac Vice I.D. No. 4447
Compass Law Partners 1475 S. Governors Ave.
51 Monroe Street, Suite 408 Dover, DE 19904
Rockville, Maryland 20850 Ph: (302) 702-5501
Ph: (240) 560-3030 [email protected]
Fax: (301) 740-2297
[email protected]
/s/ Joseph D. Stanley
Joseph D. Stanley, Esquire
I.D. No. 6329
1140 South State Street
Dover, DE 19901
(302)678-8700
September 9, 2023 [email protected]
 TABLE OF CONTENTS

PAGE

Table of Authorities ……………………………………….…………………..….. 3

Preliminary Statement ……………………………………………………..…..….. 4

Factual Background …………………………………………………….…..….….. 5

I. Parties ………………………………………………………...…...… 5

II. Facts Alleged in Counter Claims ……………………….….….…..… 5

III. Actual Facts …………………………………………………………. 7

Argument ………………………………………………………………….…..… 13

I. Standard of Review ……………………………………………...…. 13

II. Claims Barred by 2-year Statute of Limitations ……………….…… 14

III. Inconsistences Between Answers to Amended Complaint

and Allegations in Counterclaim ………………………………...…. 16

IV. Invasion of Privacy by Intrusion ……………………………..…….. 18

A. Intrusion ………………………………………………….…...… 18

B. Highly Offensive to a Reasonable Person ……………….……… 20

V. Invasion of Privacy by Publication of Private Facts/Matters ….....… 22

A. Disclosure ……………………………………...…………....….. 22

B. Highly Offensive to a Reasonable Person ……………………..... 23

C. Legitimate Public Concern ………………………………….….. 24

1
 Page

D. True Statement of Facts ……………………………………....… 25

VI. Conspiracy and Aiding and Abetting Counts ………………….....… 25

A. Conspiracy ……………………………………….……………... 26

B. Aiding and Abetting ………………………………….……….... 27

Conclusion ………………………………………………………….…………… 28

2
 TABLE OF AUTHORITIES

PAGE

Anderson v. Airco, Inc., No. 02C-12-091 HdR, 2004 Del.

Super. LEXIS 393, at *10 (Super. Ct. Nov. 30, 2004) ……………………...... 26, 27

Atamian v. Gorkin, 1999 Del. Super. LEXIS 666, *9

(Del. Super. Ct. August 13, 1999) …………………………………………..……. 25

Beckett v. Trice, 1994 Del. Super. LEXIS 599

(Del Super. Ct. November 4, 1994) ………………………………………………. 21

Ciabattoni v. Teamsters Local 326, No. N15C-04-059 VLM,

2017 Del. Super. LEXIS 362, at *11 (Super. Ct. July 25, 2017) ……………...… 14

Cousins v. Goodier, 2021 WL 3355471, at *7

(Del. Super. Ct. July 30, 2021) ……………………..…………………………..… 26

Dayton v. Collison, No. N17C-08-100 CLS, 2020 Del. Super.

LEXIS 310, at *29 (Del. Super. Ct. June 22, 2020) …………………..………….. 18

Heller v. Dover Warehouse Market, Inc., 515 A.2d 178,

179-80 (Del. Super. Ct. 1986) ………………………………………………….… 13

Lee v. Picture People, Inc., 2012 Del. Super. LEXIS 159,

*7-8 (Del. Super. Ct. March 19, 2012) ……………………………..…………….. 18

Nix v. Sawyer, Del.Super., 466 A.2d 407 (1983) ………………………………… 13

Spence v. Cherian, 135 A.3d 1282, 1288 (Del. Super. Ct. 2016) ……….……..… 22

Spence v. Funk, Del.Supr., 396 A.2d 967 (1978) ………………………………… 13

Triplex Communications v. Riley, 900 S.W.2d 716, 720,

38 Tex. Sup. Ct. J. 765 (Tex.) 1995) ……………………………..………………. 27

White v. Riego, No. 04C-10-015 PLA, 2005 Del. Super.

LEXIS 67, at *5 (Super. Ct. Mar. 3, 2005) …………………………………….… 14

3
 PRELIMINARY STATEMENT

The counterclaim filed by Defendant/Counterclaim Plaintiff Robert Hunter

Biden (“Biden”) seeks to impose liability on John Paul Mac Isaac (“Mac Isaac”) (1)

for performing services that Biden hired him to do (which required accessing the

data); (2) for turning the information over to law enforcement after concerns of

seeing illegal activity; and (3) for turning the information over to the attorney for the

President of the United States after determining that the information on the laptop

may be needed as part of his impeachment defense. Biden’s allegations are nothing

more than political talking points under the guise of legal arguments.

Mac Isaac did not seek this limelight. Mac Isaac himself was not particularly

political prior to the defamation committed by the Biden political machine. In fact,

at the time of all relevant events, Mac Isaac was a registered Democrat. Regardless,

Defendant Biden chastises him as a “right-wing nut job” instead of the concerned

citizen he was and is today.

4
 FACTUAL BACKGROUND

I. PARTIES

Mac Isaac is a private citizen who resides in Wilmington, Delaware, and was

the owner of a computer repair shop named “The Mac Shop.”

Biden, who currently resides in California, is the son of the President of the

United States, Joseph R. Biden, Jr., and was a customer of The Mac Shop who sought

Mac Isaac’s assistance with retrieving data from a Mac computer after damaging the

Mac with liquid.

II. FACTS ALLEGED IN COUNTERCLAIMS

For the purpose of this motion, Plaintiff must accept Defendant’s well-pleaded

facts in the counterclaims. Biden’s invasion of privacy claims center on a few

specific dates. Biden claims that Mac Isaac accessed Biden’s data as early as April

13, 2019. (¶ 9 of Biden’s Counterclaims). Mac Isaac allegedly made a “clone” of the

data that he then loaded onto a MacBook of his own in July 2019. (¶ 22 of Biden’s

Counterclaims). On or around September 2019, Mac Isaac allegedly sent a hard

drive containing the data from Wilmington, Delaware to his father, Richard “Steve”

Mac Isaac, in Albuquerque, New Mexico. (¶ 23 of Biden’s Counterclaims). In that

same month, Mac Isaac allegedly composed a letter to send to President Trump’s

attorney Rudy Giuliani. (¶ 24 of Biden’s Counterclaims). In November 2019, Mac

Isaac allegedly printed out materials from the data he maintained to assist then-

5
President Trump in defending against the impeachment proceedings in the U.S.

House of Representatives. (¶ 25 of Biden’s Counterclaims).

Mac Isaac also allegedly gave a copy of the data in his possession to his friend,

Kristen Riley, to hold in case something happened to Mac Isaac. (¶ 26 of Biden’s

Counterclaims). No date is cited in this claim, but it likely occurred around the same

time as outlined in ¶ 23 of Biden’s Counterclaims. According to the counterclaim,

Mac Isaac also allegedly gave a copy of the data in his possession (either electronic

or printed) to his uncle, Ronald J. Scott, Jr., who in May 2020 was allegedly sending

at least summaries of the data he received from his nephew to journalists and

Republican members of Congress. (¶ 27 of Biden’s Counterclaims).

On August 27, 2020, Mac Isaac allegedly made contact with Rudy Giuliani’s

lawyer, Robert Costello, regarding the data in his possession. (¶ 29 of Biden’s

Counterclaims). On August 28, 2020, Mac Isaac allegedly sent another copy of the

data in his possession to the home of Mr. Costello in New York. (¶ 31 of Biden’s

Counterclaims).

On September 24, 2020, Mac Isaac allegedly informed Senator Ron Johnson’s

staff that he had possession of data that he claimed came from a laptop left at his

business by Mr. Biden. (¶ 36 of Biden’s Counterclaims).

On October 14, 2020, the New York Post published an article allegedly about

the data Mac Isaac had accessed and copied that he claimed belonged to Mr. Biden.

6
(¶ 39 of Biden’s Counterclaims). There are also many other allegations about people

who allegedly received the data from the hard drive from Giuliani, not Mac Isaac.

III. ACTUAL FACTS

Hunter’s Laptop

At issue is the fact that, on April 12, 2019, Biden dropped off his Mac Book

(“laptop”) at Mac Isaac’s Mac repair shop, returned once a day or two later at Mac

Isaac’s request, but never returned. When he dropped off the laptop, Biden provided

Mac Isaac with his phone number and email address, both of which he confirmed

were his, and, after Mac Isaac explained the data recovery process, signed the work

authorization. When Mac Isaac called Biden more than once and left him voicemails

to come to pick up his laptop, if Biden didn’t remember doing so, this would have

been a pretty clear reminder. Further, when Mac Isaac sent Biden an email with the

invoice, again, that would have been a pretty clear reminder that he dropped off his

laptop with Mac Isaac. It is simply not logical for a political operative (or Russian

operative) to pretend to be Biden then drop off the laptop and then provide Mac Isaac

with Biden’s actual contact information.

Not only did Biden not pay for the services but he left the laptop with Mac

Isaac, triggering its contractual provisions deeming it Mac Isaac’s property after 90

days. The contract also held Mac Isaac harmless from any damage incurred by Biden

as a result.

7
 Biden refuses to admit that he visited The Mac Shop (twice), despite Mac

Isaac presenting evidence that he dropped off his Mac computer “Mac” at Mac

Isaac’s store. Biden also interprets passages from Mac Isaac’s book in ways that

obfuscate the true meaning of the passages (discussed herein) with the hope that this

Honorable Court will not read Mac Isaac’s book and glean the true meaning of the

passages.

Recognition of Hunter Biden

Contrary to Biden’s counterclaim, Mac Isaac never claimed he was never able

to identify who brought the laptop into his shop. He has consistently said that he was

not sure who came into his shop that night. Despite Biden’s insistence that he is

recognizable by everyone (he may be now), Mac Isaac did not know what he looked

like and, therefore, did now know who he was when he walked into the shop.

When Biden told Mac Isaac his name, that identification coupled with the

Beau Biden Foundation sticker on the laptop seemed to confirm who was in the shop.

Further, Mac Isaac looked up Biden to see what he looked like and confirmed that

the person who dropped off the laptop was, in fact, Biden.

The twisting of Mac Isaac’s words in a way that suits Biden does not change

the facts.

8
Data Recovery of Laptop

Mac Isaac suspected the laptop had a short in the keyboard or trackpad. He

then explained to Biden the process of recovering the data, which included accessing

the data. He also explained the store policies and the price of the recovery. After

this explanation, Biden signed the work order authorizing Mac Isaac to access the

data to recover it.

The process was slow since the laptop would need to be charged but would

not remain charged for long. While it was charged, Mac Isaac would recover as

much data as he could until the laptop shut down. Then Mac Isaac would have to

charge the laptop again, find where he had left off (by reviewing the files), and begin

the recovery again.

Further, when recovering data, professionals try to verify that no corruption

of data occurred. The best files to use in this verification are video files. Mac Isaac

opened some of the larger video files to confirm that they were not corrupted.

Unfortunately, many (most) of these video files were homemade pornography

featuring Biden. Although disgusting, the video files were not corrupted so, in the

end, Mac Isaac determined that his recovery was successful and called Biden and

left a voicemail telling him to purchase an external hard drive onto which he could

transfer the data from the store server.

9
 Biden did as he was told and returned to the shop with the external hard drive.

Mac Isaac then completed the recovery and contacted Biden to tell him to pick up

his laptop and the hard drive. He never returned and the rest is history.

FBI

After obtaining the rights to the laptop pursuant to the contract signed by

Biden, Mac Isaac grew uneasy with the seemingly illegal activities cataloged in the

laptop. As he was taught to do at the Apple Store and in accordance with his own

convictions, he made contact with the FBI. Soon thereafter, on December 9, 2019,

Mac Isaac gave the laptop, the original hard drive, and the original work order to the

FBI.

Rudy Giuliani

After making a determination that the authorities had not disclosed the

existence of the laptop to the President of the United States for use during his

impeachment trial, Mac Isaac felt compelled to do so himself. By the time he made

this decision, the laptop had been in the possession of the FBI for a few months.

Mac Isaac first approached members of Congress about the laptop but, when he

failed to receive responses, he took it upon himself to contact the attorney for the

President of the United States – Rudy Giuliani.1

1
Mac Isaac never actually spoke with or met Mr. Giuliani. All of his interactions were with Mr.
Giuliani’s attorney, Robert Costello.
10
 It was not until 2023 that Mac Isaac met Giuliani in person. As noted by Biden

in his counterclaim, Mac Isaac was invited to attend an event by the Metropolitan

Republican Club on April 17, 2023. He was one of the honorees at the event along

with Giuliani. During that event, he briefly met Giuliani. Unlike the political slant

Biden alluded to in the counterclaim, Mac Isaac did not assist with planning the

event, he was simply invited and he attended.

October 14, 2020 (NY Post Article)

Mac Isaac provided no information about Biden to the NY Post. All

information had been provided by someone else and caught Mac Isaac off guard

when he found out about it. His only role in the article was in confirming who he

was and what happened. He did not confirm any of the information presented in the

article that came from the laptop.

“Interviews”

Biden points out interviews in which Mac Isaac participated in an attempt to

show that Mac Isaac relished in the spotlight. In fact, reporters from the Daily Beast,

CNN, and CBS (and possibly others) did not politely request an interview with Mac

Isaac. They forced their way into his shop when Mac Isaac unlocked the door to let

a customer out. They barraged him with questions and threatened not to leave until

he answered their questions. The reporters not only twisted his words but also put

words in his mouth (i.e., reference to Seth Rich). The entire interview can be heard

11
on the website of the Daily Beast (https://www.thedailybeast.com/man-who-

reportedly-gave-hunters-laptop-to-rudy-speaks-out-in-bizarre-interview).

Mac Isaac had never been involved in any situation like this and was

uncomfortable and scared that such a powerful family would seek retribution. His

answers were nervous responses to questions and the things he anticipated would be

used against him (i.e., he is legally blind).

Financial Capitalization by Mac Isaac

Mac Isaac’s sole source of income was torn from him as a result of the Biden

Presidential campaign-led backlash to the October 14, 2020, NY Post article. Out of

concerns for his own safety, Mac Isaac had to shutter his business.

Mac Isaac wrote his book for a few reasons: (1) to provide an accurate account

of what happened from the time Biden dropped off his laptop at Mac Isaac’s shop to

the immediate aftermath of the October 14, 2020, NY Post article; (2) to have

something to do since he no longer had a business to run; and (3) to survive.

Mac Isaac’s book merely tells the story of what happened. The only

information from the laptop included in the book was information that had already

been publicly released by others. No new information from the data on the laptop

appeared in Mac Isaac’s book.

12
Biden’s Book

Throughout the counterclaim, Biden hems and haws about how embarrassing

the content of the laptop was while, at the same time, failing to identify what content

and if it was even his content. At the same time, Biden wrote and released a book

describing his very personal and embarrassing struggle with drug abuse.

Anyone who “wins” the struggle against drug abuse should be applauded.

However, this abuse should not be an excuse to destroy the life of someone else.

Biden had a very clear picture of his comings and goings in his book yet failed to

remember details like bringing Mac Isaac his laptop and returning another time with

an external hard drive.

ARGUMENT

I. STANDARD OF REVIEW

For the purpose of judging a motion to dismiss for failure to state a claim

pursuant to Superior Court Civil Rule 12(b)(6), all well-pleaded allegations in the

complaint must be accepted as true. Spence v. Funk, Del.Supr., 396 A.2d

967 (1978); Nix v. 396 A.2d 967 (1978); Nix v. Sawyer, Del.Super., 466 A.2d

407 (1983) Heller v. 466 A.2d 407 (1983) Heller v. Dover Warehouse Market, Inc.,

515 A.2d 178, 179-80 (Del. Super. Ct. 1986). A motion to dismiss is the proper

vehicle for a statute of limitations defense where the pleading itself demonstrates

that the claim was brought after the statutory period has run. Counterclaims are

13
affirmative actions and, consequently, are subject to the applicable statute of

limitations. Adames v. Adames, C.A. No. N19C-06-189 JRJ (Del. Super. Ct. June 5,

2020) citing Am. Home Products Corp. v. Norden Laboratories, Inc., 1992 WL

368604, at *3 (Del. Ch. Dec. 11, 1992)

II. BIDEN’S CLAIMS ARE BARRED BY 2-YEAR STATUTE OF

LIMITATIONS

In Delaware, claims of invasion of privacy are subject to a two-year statute of

limitations period. Ciabattoni v. Teamsters Local 326, No. N15C-04-059 VLM,

2017 Del. Super. LEXIS 362, at *11 (Super. Ct. July 25, 2017). Further, Delaware

follows the “time of discovery” rule which starts the clock for the statute of

limitations. See White v. Riego, No. 04C-10-015 PLA, 2005 Del. Super. LEXIS 67,

at *5 (Super. Ct. Mar. 3, 2005).

Here, Biden originally filed his Answer with Counterclaims in Federal Court

against Mac Isaac on March 17, 2023. Any actions by Mac Isaac concerning Biden

prior to March 17, 2021, are not actionable.

In Count One of his counterclaims, Biden claims that Mac Isaac intruded upon

Biden’s seclusion by accessing the data on Biden’s Mac. Here, according to the

counterclaim, Mac Isaac first accessed the information on Biden’s Mac computer on

or around April 13, 2019. Biden also alleges that Mac Isaac created a “clone” of the

data in July 2019. Biden states in September 2019, Mac Isaac sent a hard drive

14
containing the data to his father, Steve Mac Isaac. The latest date alleged in Biden’s

claim that Mac Isaac arguably accessed Biden’s data was when Mac Isaac sent a

copy of the data to Rudy Giuliani’s lawyer, Robert Costello on August 28, 2020.

Therefore, the statute of limitations period for these acts expired at the earliest on

April 12, 2021 (when he first accessed the data) and at the latest August 28, 2020,

when the data was sent to Costello. Either way, any plausible claim expired on

August 28, 2022.

In Count Two of his counterclaim, Biden claims that Mac Isaac intruded on

Biden’s privacy by publishing private matters/facts. Although Mac Isaac had no part

in the publication of the data on the laptop, any potential liability concerning the

publication of private matters took place at the latest on October 14, 2020, in the

New York Post article. Biden also discusses YouTube videos published in

December 2020 which would also fall outside of the statute of limitations. Biden’s

conspiracy and aiding and abetting claims would also be time-barred as they are

inextricably connected to the tort claims.

Further, the two-year statute of limitations for these claims began from the

“date upon which it is claimed that such alleged injuries were sustained.” See Del.

Code Ann. Tit. 10, § 8119. The alleged injuries were clearly sustained on October

14, 2020, when the NY Post article was published, at the latest. With that said, as

discussed herein, Mac Isaac was unaware that the NY Post article was going to be

15
published until just prior to its publication. Further, Mac Isaac did not take part in

any disclosure to the NY Post or to anyone else other than those specifically

disclosed in the Second Amended Complaint and in his book.

III. INCONSISTENCIES BETWEEN ANSWERS TO

AMENDED COMPLAINT AND ALLEGATIONS IN
COUNTERCLAIM.

Biden continues to refuse to admit that the laptop was his. It is noteworthy

that, in Biden’s answer to Mac Isaac’s Second Amended Complaint, many responses

were “Mr. Biden is without knowledge sufficient to admit or deny the allegations…”

In Paragraph 17 of the answer, Biden claims he is “without sufficient knowledge”

about asking Mac Isaac for assistance in recovering his data. Answer ¶ 17. Yet, in

Paragraph 152, he flat-out denies leaving his laptop at Mac Isaac’s shop. Answer ¶

152. In Paragraph 22 of his answer, Biden claims he is “without knowledge” about

never picking up the laptop. Answer ¶ 22. However, in Paragraph 154 of the answer,

Biden admits that he never returned to the shop. Answer ¶ 154.

Biden’s answer goes even further to obfuscate the facts. In Paragraph 156 of

the answer, Biden claims that the allegation is unclear about “what ‘laptop’ is being

referred to.” Answer ¶ 156. The Second Amended Complaint makes it clear which

laptop is at the center of the controversy. This is just another game Biden began to

play in his depositions and continues in his answer to the Second Amended

Complaint.

16
 Although Biden “is without knowledge” as to his whereabouts on April 12,

2019, Mac Isaac knows exactly where he was. Additionally, financial records show

frequent uses of Wells Fargo ATMs where significant withdrawals were made – all

within a few miles of Mac Isaac’s shop. Biden’s confused and dishonest responses

prove fatal to all facts alleged in his counterclaims.

Paragraphs 35 and 157 of the Second Amended Complaint show that Biden’s

own attorney contacted Mac Isaac to ask about the Mac the day before the NY Post

story broke. Second Amended Complaint ¶¶ 35 & 157. However, in Biden’s answer,

while Biden admits that George Mesires was his attorney, Biden is “without

knowledge sufficient to admit or deny the allegations.” Answer ¶¶ 35 & 157. If

Biden’s response is to be believed, Mesires, his personal attorney at that time, was

in the business of representing clients without being asked to do so.

As discussed above, Biden gave Mac Isaac his contact details when he visited

Mac Isaac’s shop on April 12, 2019. Biden confirmed that the contact information

was his. Mac Isaac used this information (both phone number and email address) to

contact Biden about his laptop. While Biden denies it, he received the information

from Mac Isaac because he followed Mac Isaac’s direction to purchase an external

hard drive. Assuming his denials are true, which they are not, Biden would have

received voicemail messages and emails from Mac Isaac about his computer. Would

this not have raised any alarms in his head if he had not dropped off the laptop

17
himself? For the reasons stated above and below, Biden’s counterclaims should be

dismissed with prejudice.

IV. INVASION OF PRIVACY BY INTRUSION

To state a claim for intrusion upon seclusion, Biden must show that Mac Isaac

intentionally intruded, physically or otherwise, upon his solitude or seclusion or his

private affairs or concerns in a manner that would be highly offensive to a reasonable

person. Dayton v. Collison, No. N17C-08-100 CLS, 2020 Del. Super. LEXIS 310,

at *29 (Del. Super. Ct. June 22, 2020). The key element to this tort is that there must

be an act of intrusion. See Lee v. Picture People, Inc., 2012 Del. Super. LEXIS 159,

*7-8 (Del. Super. Ct. March 19, 2012). “To intrude means to enter without

invitation.” Id.

A. Intrusion

While Biden claims he did not give consent to Mac Isaac to access the data

on his Mac, the evidence shows otherwise. The work order, shown as Exhibit A of

the Second Amended Complaint, contains not only Biden’s signature authorizing

the work done but also Biden’s contact information. Biden does not contend that he

did not sign the work order and he presents confusing responses to whether he even

dropped off the laptop with Mac Isaac. He either doesn’t recall or denies it

altogether. However, we do know that there is a work order with Biden’s signature

and his contact information. As mentioned above, it makes no sense that an

18
“operative” would sneak into Mac Isaac’s shop with a laptop containing Biden’s

information and provide Mac Isaac with Biden’s correct information. If the purpose

was to hurt President Biden’s candidacy (which had not even been announced on

April 12, 2019), it seems odd that Biden’s contact information would have been

used.

Further, after fully informing Biden of the procedures for the recovery, he

signed the work order. One cannot recover data without first accessing the data. As

discussed above, only portions of the data could be transferred at one time requiring

Mac Isaac to confirm where he left off by viewing the files. Finally, in order to

confirm the data was not corrupted, Mac Isaac viewed random files (typically large

video files) to check for data corruption. By accessing the files, Mac Isaac was able

to confirm the data was not corrupt. This was all explained to Biden prior to when

he signed the work authorization. The work authorization was all the invitation Mac

Isaac needed to access the data.

Biden’s claims that the “boilerplate terms of the Repair Authorization” were

“well below the signature line” does not impact the fact that Biden, a trained

attorney, signed the document. See Counterclaim ¶ 6. Further, Biden refers to the

Repair Authorization as a “typical small-print adhesion clause for which there was

no proper notice or opportunity to bargain or negotiate.” See Counterclaim ¶ 8. First,

the text is not abnormally small. In fact, the text seems to be the same size as the

19
description of the work to be performed. Next, Mac Isaac had the authority to

modify the contract if he was asked by Biden to do so. Biden did not ask for any

revisions to the contract. Finally, Biden was also free to seek assistance from another

repair shop. The fact that Biden, an attorney, did not ask for any modification of the

contract and transacted business with Mac Isaac weighs heavily against Biden’s

claim that the contract was unenforceable.

Biden knowingly gave Mac Isaac permission to access his data. Biden

breached the agreement by failing to pay Mac Isaac for his services and failing to

return to the shop to pick up his data. Now, Biden has failed to allege the essential

element of intrusion upon seclusion – that Mac Isaac accessed Biden’s data without

invitation. Even if this claim were not barred by the statute of limitations, it should

fail because of the clear evidence that Biden invited Mac Isaac to access his data.

B. Highly Offensive to a Reasonable Person

While many of the files on Biden’s Mac seem to be of the kind that “would

be highly offensive to a reasonable person,” Biden, himself, seemed to share the

information with others. Much of the material that a reasonable person would find

most offensive (sexually explicit photos) was voluntarily shared by Biden with

others through the website, “Pornhub.”2 Additionally, other information discovered

2
See https://www.thetimes.co.uk/article/hunter-biden-uploaded-videos-of-himself-having-sex-
p3vjkwm0k.
20
on the laptop Biden’s lack of concern about using his father’s political ties to close

deals with foreign countries, some of whom are considered adversaries with the

United States (i.e., People’s Republic of China).3 The use of the “reasonable person”

standard should clearly not apply to Biden.

Since Biden invited Mac Isaac to access the files, he cannot now claim that

Mac Isaac intruded upon his privacy and that the intrusion was highly offensive to

him. The invitation to access the files itself negates the claim of intrusion. Further,

the fact that Biden may have suffered some embarrassment because of his actions

does not give him a cause of action for invasion of privacy by intrusion. See Beckett

v. Trice, 1994 Del. Super. LEXIS 599 (Del Super. Ct. November 4, 1994). He invited

Mac Isaac in with full knowledge of what data that Mac Isaac would see. As far as

embarrassment, Biden posted homemade pornography on Pornhub and wrote a book

outlining his debauchery. It seems what would embarrass a reasonable person does

not embarrass Biden.

Biden has failed to properly allege key elements of the tort of invasion of

privacy by intrusion and Mac Isaac respectfully requests that this Honorable Court

dismiss Count I with prejudice.

3
https://oversight.house.gov/release/comer-reveals-biden-family-members-receiving-payments-
from-chinese-energy-company%EF%BF%BC/
21
 V. INVASION OF PRIVACY BY PUBLICATION OF
PRIVATE FACTS/MATTERS.

To state a claim for invasion of privacy by publication of private facts/matters,

Biden must show that the facts/matter “publicized is of a kind that (a) would be

highly offensive to a reasonable person, and (b) is not of legitimate concern to the

public.” Spence v. Cherian, 135 A.3d 1282, 1288 (Del. Super. Ct. 2016) (citing

Restatement (Second) of Torts § 652D).

A matter has been given publicity when it is “made public, by communicating

it to the public at large, or to so many persons that the matter must be regarded as

substantially certain to become one of public knowledge.” Restatement (Second) of

Torts § 652D cmt. a. “It is not an invasion of privacy to communicate a fact

concerning one’s private life to just one person, or even to a small group.” Spence at

1288.

A. Disclosure

Originally, Mac Isaac disclosed some of the information to his father and

uncle in hopes of getting their input as to what he should do. It was determined that

Mac Isaac should disclose the information to the FBI, which he did. He also gave a

copy to his friend, Kristin, but did not provide her with a bootable copy, only with

the instructions that, if something were to happen to him, she get the drive to

Giuliani. Kristin could not have accessed the drive because she did not possess the

22
knowledge of how to access it. Plus, she is a loyal friend to Mac Isaac, so she just

held it for him.

After recognizing that President Trump did not seem to have the information

from the laptop available for his defense, despite being in the possession of the FBI

since December 2019, Mac Isaac then disclosed the information to Mr. Costello with

the expressed intent that the information be disclosed solely to Mr. Giuliani, the

President’s attorney.4

Prior to the publication of the NY Post article, Mac Isaac only disclosed the

information to his father, uncle, the FBI, and Mr. Costello.5 That disclosure, to a

small group for specific purposes, investigation by the FBI into potential criminal

activity and for use by Giuliani in his defense of President Trump in the

impeachment, does not rise to the level required by the tort of intrusion by

publication.

B. Highly Offensive to a Reasonable Person

As Biden has failed to adequately allege that Mac Isaac “published” the

information on the laptop to a large enough group of people to trigger this tort, one

must not even delve into the discussion of whether the information published (by

4
Isaac discussed the information on the Mac with his father and his uncle in order to seek advice
and assistance from them. The Biden family is very powerful, and Isaac is a private citizen so he
became concerned about what the Biden’s would/could do to him and sought advice from his
family.
5
As mentioned, he did not share what was on the drive with Kristin.
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others, not Mac Isaac) would be considered “highly offensive to a reasonable

person.” If this Court must analyze this element of the tort, as discussed above, such

an analysis might not be the appropriate standard considering Biden’s proclivities.

C. Legitimate Public Concern

Even if Biden properly alleged the other elements of the tort of invasion of

privacy by publication, which he has not, the information that was published by

others is certainly of “legitimate public concern.” As discussed above, the

information discovered on the laptop seems to clearly show Biden’s use of his

father’s political power to close deals with foreign countries with whom the U.S.

shares an adversarial relationship. The fact that Biden was involved in these deals

while making homemade pornography and abusing drugs is certainly of legitimate

public concern.

Despite the overwhelming evidence of information that constitutes

“legitimate public concern,” that analysis does not matter in the case of Mac Isaac

since Mac Isaac, himself, did not disclose the information to the “public at large.”

He solely shared the information with a small group of individuals, those with the

authority to investigate whether the data held criminal information and/or

information that should have been available to the U.S. President during his

impeachment trial. Mac Isaac had no control over what those individuals chose to

do with it thereafter.

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 D. True Statements of Fact

“[U]nder § 652D, not only must the communications at issue be publicized,

but they must also represent true statements of fact.” Atamian v. Gorkin, 1999 Del.

Super. LEXIS 666, *9 (Del. Super. Ct. August 13, 1999). Is Biden claiming the

information disclosed by others (again, not by Mac Isaac) is true? He only tacitly

mentions in Paragraphs 5 and 6 and in footnote 1 of his counterclaim that “some of

the information” obtained by Mac Isaac belonged to Biden. Counterclaim ¶¶ 5 & 6.

In order for a claim of invasion of privacy by publication of facts/matters to be

successful, the information disclosed must be true. Nowhere in the counterclaim

does Biden identify any specific information publicly disclosed (by others – not by

Mac Isaac), that was true. With this glaring omission coupled with the facts that Mac

Isaac did not disclose the information to the public, there was no “embarrassing”

information published that Biden did not already publish himself and that the

information disclosed by others was clearly of legitimate public concern, Biden has

failed to properly allege key elements of the tort of invasion of privacy by

publication of private facts/matters and Mac Isaac respectfully requests this

Honorable Court to dismiss Count II with prejudice.

VI. CONSPIRACY AND AIDING AND ABETTING COUNTS

Biden’s remaining claims of conspiracy (Counts Three and Four) and aiding

and abetting (Counts Five and Six) fail along with his claims of invasion of privacy

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by intrusion and invasion of privacy by publication of private facts/matters. Neither

conspiracy claims nor aiding and abetting claims are independent causes of action.

There must be some underlying tortious conduct. See Cousins v. Goodier, 2021 WL

3355471, at *7 (Del. Super. Ct. July 30, 2021). For these claims to survive a motion

to dismiss, Biden must have stated valid claims for invasion of privacy by intrusion

and invasion of privacy by publication of private facts/matters – which he has not

done. As the alleged counts in the counterclaim are not actionable as invasions of

privacy, they are not actionable as “conspiracy, or aiding and abetting.” Id. With that

said and in recognition that a tort could have conceivably been committed by

someone else, although no other party is included in this counterclaim, for the

additional reasons set forth below, Biden’s counts for conspiracy and aiding and

abetting fail.

A. Conspiracy

Delaware follows the language of the Restatement (Second) of Torts when

determining whether a civil conspiracy was present. Specifically, Restatement §

876(a) defines civil conspiracy as “the combination of two or more persons or

entities either for an unlawful purpose or for the accomplishment of a lawful purpose

by unlawful means, resulting in damage.” Anderson v. Airco, Inc., No. 02C-12-091

HdR, 2004 Del. Super. LEXIS 393, at *10 (Super. Ct. Nov. 30, 2004).

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 One cannot be part of a conspiracy without the specific intent to cooperate

with the other conspirators. See Triplex Communications v. Riley, 900 S.W.2d 716,

720, 38 Tex. Sup. Ct. J. 765 (Tex.) 1995). While the agreement need not be

expressed in words, “it has been recognized that ‘accidental, inadvertent, or

negligent participation in a common scheme does not amount to a

conspiracy.’” Anderson at *19 (citing In re Methyl Butyl Ether Prods. Liab. Litig.,

175 F. Supp.2d 593, 634 (S.D.N.Y. 2001)).

At no point in the counterclaim does Biden provide any factual allegations

that support a claim that Mac Isaac’s intent was to get the information on the hard

drive released to the public. Mac Isaac has been very clear and has never deviated

about why he contacted the FBI and Mr. Costello, which has been expressed

throughout this opposition as well.

B. Aiding and Abetting

In Delaware, liability for aiding and abetting requires proof of three elements:

(1) underlying tortious conduct, (2) knowledge, and (3) substantial assistance or

encouragement. See Anderson v. Airco, Inc., No. 02C-12-091 HdR, 2004 Del. Super.

LEXIS 393, at *22 (Super. Ct. Nov. 30, 2004). Biden has not properly alleged that

there was any underlying tortious conduct.

Biden has not alleged that Mac Isaac had knowledge of any tortious conduct

that would arise from his actions. While Delaware recognizes that a negligent act

27
can create liability for aiding and abetting tortious conduct, the aider and abettor

must still be generally aware that he is providing substantial assistance or

encouragement to the tortfeasor. Biden’s counterclaims are replete with conclusory

allegations masquerading as facts and fail to present any facts that Mac Isaac knew

that he would be aiding a tort. Perhaps in Biden’s overly politicized world, it would

make sense. To a common citizen, however, he was just trying to get the information

to the authorities and had no idea it would be used as part of a political attack.

Mac Isaac never expressed any type of loyalty to President Donald Trump,

nor did he express any dislike for President Joseph Biden, despite what Biden

attempts to say in his counterclaim. Mac Isaac respects the office of the President

and would have done the same thing if Donald Trump, Jr. had dropped off a laptop

with incriminating information on it and that information could be used by President

Biden in his defense. Biden’s counterclaim assumes that everyone thinks like he

does and, in doing so, Biden fails to properly allege any cause of action.

CONCLUSION

For the foregoing reasons, John Paul Mac Isaac respectfully requests that the

Court dismiss the counterclaims against John Paul Mac Isaac with prejudice.

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 Respectfully submitted,

/s/ Brian R. Della Rocca /s/ Ronald G. Poliquin

Brian R. Della Rocca, Esquire Ronald G. Poliquin, Esquire
Admitted Pro Hac Vice I.D. No. 4447
Compass Law Partners 1475 S. Governors Ave.
51 Monroe Street, Suite 408 Dover, DE 19904
Rockville, Maryland 20850 Ph: (302) 702-5501
Ph: (240) 560-3030 [email protected]
Fax: (301) 740-2297
[email protected]
/s/ Joseph D. Stanley
Joseph D. Stanley, Esquire
I.D. No. 6329
1140 South State Street
Dover, DE 19901
(302)678-8700
September 9, 2023 [email protected]

Attorneys for Plaintiff John Paul Mac Isaac

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