EFiled: Sep 22 2023 03:29PM EDT

Transaction ID 70932587
Case No. S22C-10-012 RHR
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JOHN PAUL MAC ISAAC,

Plaintiff/Counterclaim
Defendant,
C.A. No. S22C-10-012 RHR
v.
Hon. Robert H. Robinson, Jr.
CABLE NEWS NETWORK, INC.,
POLITICO LLC,
ROBERT HUNTER BIDEN, and
BFPCC, INC.,

Defendants/Counterclaim
Plaintiff Biden.

DEFENDANT/COUNTERCLAIM PLAINTIFF ROBERT HUNTER

BIDEN’S ANSWERING BRIEF IN OPPOSITION TO
PLAINTIFF/COUNTERCLAIM DEFENDANT JOHN PAUL MAC
ISAAC’S MOTION TO DISMISS COUNTERCLAIMS
 TABLE OF CONTENTS

Page
PRELIMINARY STATEMENT ...............................................................................1
FACTUAL BACKGROUND ....................................................................................3
ARGUMENT .............................................................................................................7
I. MOTION TO DISMISS STANDARD. ................................................7
II. MR. BIDEN’S COUNTERCLAIMS ARE TIMELY UNDER
DELAWARE’S TWO-YEAR STATUTE OF LIMITATIONS
FOR INVASION OF PRIVACY. .........................................................9
III. IT IS REASONABLY CONCEIVABLE THAT MAC ISAAC
INVADED MR. BIDEN’S PRIVACY WHEN HE INTRUDED
ON HIS SECLUSION. ........................................................................14
A. Mr. Biden’s Electronically Stored Data Was Intentionally
Invaded By the Prying Eyes of Mac Isaac. ...............................14
i. Mac Isaac has no contractual right to Mr. Biden’s
private data......................................................................14
ii. By rummaging through Mr. Biden’s data immediately
after coming into possession of it, Mac Isaac invaded
Mr. Biden’s privacy. .......................................................17
B. A Reasonable Person Would Find a Stranger Combing
Through Their Personal Communications, Memories, and
Finances Highly Offensive. ......................................................19
IV. MAC ISAAC INVADED MR. BIDEN’S PRIVACY WHEN HE
PUBLISHED DETAILS OF MR. BIDEN’S PRIVATE LIFE. .........21
A. By Sending Copies of Mr. Biden’s Data to Family,
Friends, and Individuals with Large Public Profiles and
then Publishing the Data in a Tell-All Book, Mac Isaac
Revealed Mr. Biden’s Private Information in a Manner
“Sure to Reach the Public.” ......................................................22
B. A Subjective Reasonableness Standard Is Inapplicable in
Privacy Cases, Especially Where, as Here, the Defendant
Is a Reasonable Person Mercilessly Subjected to Highly
Offensive Actions. ....................................................................24

i
 C. Mr. Biden Is a Private Person Whose Intimate Photos and
Videos and Private Finances Are of No Legitimate Public
Concern. ....................................................................................25
D. Mac Isaac Disclosed Electronically Stored Information of
Unknown Origin, Some of Which Includes Accurate
Copies of Mr. Biden’s Personal Data. ......................................27
V. MAC ISAAC CONSPIRED WITH FRIENDS, FAMILY, AND
INDIVIDUALS WITH LARGE PUBLIC PROFILES TO
INVADE MR. BIDEN’S PRIVACY BY REVIEWING AND
THEN PUBLICIZING MR. BIDEN’S PERSONAL DATA. ............28
VI. BY ASSISTING NUMEROUS INDIVIDUALS IN SECURING
AND THEN DISSEMINATING PRIVATE ELECTRONIC
DATA, MAC ISAAC AIDED AND ABETTED THE INVASION
OF MR. BIDEN’S PRIVACY. ...........................................................31
CONCLUSION ........................................................................................................32

ii
 TABLE OF AUTHORITIES

Page(s)

Cases
AB Stable VIII LLC v. Maps Hotels & Resorts One LLC,
2020 WL 7024929 (Del. Ch. Nov. 30, 2020), judgment entered
(Del. Ch. 2021), and aff’d, 268 A.3d 198 (Del. 2021) .......................................15

Anderson v. Airco, Inc.,

2004 WL 2827887 (Del. Super. Ct. Nov. 30, 2004)...........................................31

In re Appraisal of Metromedia Int’l Grp., Inc.,

971 A.2d 893 (Del. Ch. 2009) ............................................................................16

Atamian v. Gorkin,
1999 WL 743663 (Del. Super. Ct. Aug. 13, 1999), aff’d, 746 A.2d
275 (Del. 2000) .............................................................................................21, 27
Lee ex rel. B.L. v. Picture People, Inc.,
2012 WL 1415471 (Del. Super. Ct. Mar. 19, 2012) ...........................................18
Barker v. Huang,
610 A.2d 1341 (Del. 1992) .................................................................................21

Blaskovitz v. Dover Fed. Credit Union,

2017 WL 2615748 (Del. Super. Ct. June 15, 2017) ............................................. 7
In re Bracket Holding Corp. Litig.,
2017 WL 3283169 (Del. Super. Ct. July 31, 2017) ......................................28, 31
Brittingham v. Topping,
2014 WL 4382998 (Del. Super. Ct. July 31, 2014), aff’d, 2015 WL
1604851 (Del. Apr. 7, 2015) ...............................................................................25
Dayton v. Collison,
2020 WL 3412701 (Del. Super. Ct. June 22, 2020), aff’d, 250 A.3d
763 (Del. 2021) .............................................................................................14, 18

Deere & Co. v. Exelon Generation Acquisitions, LLC,

2014 WL 904251 (Del. Super. Ct. Mar. 7, 2014) ................................................. 7

iii
Farrell v. A. C. & S. Co.,
1989 WL 70870 (Del. Super. Ct. June 12, 1989) ...............................................20

Martin v. Widener Univ. Sch. of L.,

1992 WL 153540 (Del. Super. Ct. June 4, 1992) .........................................25, 26

O’Neill v. AFS Holdings, LLC,

2014 WL 626031 (Del. Super. Ct. Jan. 15, 2014) ................................................ 7

Spence v. Cherian,
135 A.3d 1282 (Del. Super. Ct. 2016) ................................................................23

Szczerba v. Am. Cigarette Outlet, Inc.,

2016 WL 1424561 (Del. Super. Ct. Apr. 1, 2016) .......................................28, 30

Wal-Mart Stores, Inc. v. AIG Life Ins. Co.,

860 A.2d 312 (Del. 2004) .....................................................................................9
Wallace v. Cap. Cities/ABC, Inc.,
1989 WL 100423 (Del. Super. Ct. Aug. 29, 1989).......................................25, 26
White v. Riego,
2005 WL 516850 (Del. Super. Ct. Mar. 3, 2005) ...............................................10

Winshall v. Viacom Int’l Inc.,

76 A.3d 808 (Del. 2013) .......................................................................................7
Statutes
Del. Code Ann. tit. 10, § 8119 .................................................................................10
Del. Code Ann. tit. 11, § 1335 .....................................................................17, 18, 27

Del. Code tit. 25, § 4001 ..........................................................................................15

Del. Code tit. 25, § 4003 ..........................................................................................16

Del. Code tit. 25, § 4003(b) .....................................................................................16

Other Authorities

Luke Broadwater, House Republican Report Finds No Evidence of

Wrongdoing by President Biden, N.Y. TIMES (May 10, 2023) ..........................20

iv
Miranda Devine, Hunter Biden claims he was ‘embarrassed’ by
laptop in deposition – but still denies it or contents are his, N.Y.
POST (Sept. 7, 2023)..............................................................................................8

Restatement (Second) of Torts, § 652B ...................................................................14

Restatement (Second) of Torts, § 652D.............................................................21, 27

v
 Defendant/Counterclaim Plaintiff Robert Hunter Biden (“Biden”) respectfully

submits this memorandum of law in opposition to Plaintiff/Counterclaim Defendant

John Paul Mac Isaac’s (“Mac Isaac”) Motion to Dismiss Mr. Biden’s Counterclaims

(the “Motion”). (DE 206.)

PRELIMINARY STATEMENT
In his Motion, Mac Isaac attempts to paint himself as an innocent bystander

to the media frenzy swirling around Mr. Biden’s private life. In truth, his intentional

acts demonstrate he started the storm.

Until Mac Isaac’s November 22, 2022 publication of his book, American

Injustice: My Battle to Expose the Truth (Post Hill Press 2022), Mr. Biden was

blamelessly unaware of the particularity with which Mac Isaac handled his private

data, including the scale and scope of Mac Isaac’s repeated strategic and intentional

disclosures of his most intimate information.

Mac Isaac attempts to shroud his voyeurism, explaining that he needed to view

Mr. Biden’s files to check for corrupt data. Such a justification, in light of his

immediately opening, examining, and investigating every photograph, video,

communication, and document of a private person’s electronically stored data, is

incredible. Every person would be deeply offended by such a shameless intrusion

into their private life. And signing a work-order form, let alone one that contravenes

Delaware law by relinquishing one’s “equipment” after 90 days, cannot be rationally

1
read to give unlimited access and ownership of one’s electronic data to a repair

person do as he pleases with it.

Privately sifting through Mr. Biden’s data pales in comparison to what Mac

Isaac did next. He copied the data and distributed it far and wide, including to close

friends and family and people he knew would use it to attack his purported customer,

among these, allies of then-President Trump, who published the information for

political gain. Mac Isaac then went on tour with the data using it for media

appearances, podcast content, and even as the basis for an entire book.

By sharing Mr. Biden’s data with six other individuals, with the knowledge

that they too would scrutinize and further disseminate the data, Mac Isaac conspired

and thus necessarily aided and abetted others in invading Mr. Biden’s seclusion.

Indeed, Mac Isaac assisted these individuals to further publicize the data through

creation of additional copies and communications with several news outlets and

congressional offices. In so doing, Mac Isaac then too conspired and aided and

abetted in the publicization of Mr. Biden’s data.

Mac Isaac, who shared Mr. Biden’s private photographs (including those of

his dying brother), pornographic videos, financial documents, and familial

communications with the world, dares to say mere embarrassment does not create a

cause of action. But the consequences of Mac Isaac’s acts are severe: Mr. Biden is

harassed and berated online and offline, requires his immediate family to have

2
security even when not with him, and has been forced to move homes three times.

And Mac Isaac—the eye of this hellish storm—is responsible for the harm.

FACTUAL BACKGROUND

Mac Isaac, by whatever means (either, as he claims, by a person entering his

shop, or, more likely, by some other potentially nefarious method), came into

possession of certain electronic data, at least some of which belonged to Mr. Biden,

in or before April 2019. 1 (¶ 4.)2 Mac Isaac claims that he obtained lawful possession

of data belonging to Mr. Biden because it was contained on a laptop left at his repair

shop (The Mac Shop) in Delaware. His theory is that, under the terms of a repair

authorization form, because Mr. Biden did not return to the repair shop to retrieve

his equipment within 90 days, Mac Isaac became the rightful owner, not just of the

equipment, but of all its underlying data. 3 (Mot. at 7.) The form states that The Mac

Shop will make every effort to “secure your data” when performing any “data

recovery.” (Plaintiff/Counterclaim Defendant’s Second Amended Complaint

(“SAC”) Ex. A, incorporated by reference.)

1
This is not an admission by Mr. Biden that Mac Isaac (or others) in fact possessed
any particular “laptop” containing electronically stored data belonging to Mr. Biden.
Rather, Mr. Biden acknowledges that at some point, Mac Isaac obtained
electronically stored data, some of which belonged to Mr. Biden.
2
Unless otherwise noted, references to “¶” refer to Mr. Biden’s Counterclaims, filed
on August 8, 2023.
3
The Repair Authorization form (SAC Ex. A) states that “equipment left with the
Mac Shop after 90 days of notification of completed service will be treated as
abandoned.” (¶ 5) (emphasis added).

3
 Upon obtaining the equipment, Mac Isaac disclosed in his book, American

Injustice: My Battle to Expose the Truth, published on November 22, 2022, that he

began accessing Mr. Biden’s data as early as April 13, 2019—the day after allegedly

receiving the equipment. (¶ 9.) Mac Isaac admitted that he “dove into the laptop

every evening,” and that he examined “emails and files, matching places and names

with dates and times,” all of which left him “speechless.” (¶¶ 11–13 (quoting

American Injustice at 29, 52).) He, for example, examined a file titled, “income.pdf”

containing Mr. Biden’s private tax-related information. (¶ 12.) The data Mac Isaac

reviewed and shared, including photos and videos of Mr. Biden naked “hitting a

crack pipe” and having intercourse, was of such a private nature that it made him

“uncomfortable.” (¶¶ 10, 14 (quoting American Injustice at 30, 46).) In his own

words, it was “none of [his] business.” (¶ 10 (quoting American Injustice at 15).)

At no time did Mr. Biden grant Mac Isaac permission to review, copy, or disseminate

any electronically stored data ever created, received, or maintained by Mr. Biden.

(¶ 16.)

As first revealed in his book in 2022, Mac Isaac took deliberate steps to

distribute copies of the personal data to various people without Mr. Biden’s consent.

(¶ 17.) For example, Mac Isaac discussed working with an individual named Yaacov

Apelbaum in October 2020 (at his home in Delaware) to attempt to create a forensic

image of the data in Mac Isaac’s possession, and allowed Apelbaum to retain a copy

4
of that data thereafter. (¶ 19.) He shared copies of the data with his father, Richard

Steve Mac Isaac (¶ 22); with his friend Kristen Riley, who he gave a “secret” copy

of the drive for Rudy Giuliani, “should something happen to” Mac Isaac (¶ 26

(quoting American Injustice at 76)); with his uncle, Ronald J. Scott, who sent

summaries of the data to journalists and Republican members of Congress (¶ 27);

and with Robert Costello, with whom he “agreed” to FedEx a copy of the hard drive,

knowing full well that Costello was working with then-President Trump’s lawyer

and ally, Rudy Giuliani, “to get the information to the right places.” (¶¶ 29–33

(quoting the Daily Mail and N.Y. Mag.).)4

In September 2020, Mac Isaac conspired with his family to get a copy of the

data to a former Fox News executive (Ken LaCorte), to share with Tucker Carlson.

(¶ 28.) He also provided Costello “instructions on how to safely access it and avoid

connecting it to the internet” (¶ 32 (quoting American Injustice at 64)), and agreed

to help Costello create “bootable copies of the drive” so others could gain access.

(¶ 35 (quoting American Injustice at 65).) In September 2020, Mac Isaac also

informed U.S. Senator Ron Johnson’s staff that he possessed data he claimed came

from Mr. Biden’s abandoned “laptop.” (¶ 36.)

4
Costello would later share a copy of the data with Steve Bannon, and Bannon would
go on to pass a copy of the data to others, including Guo Wengui and Jack Maxey.
(¶¶ 37–38, 42.)

5
 Mac Isaac initially wished to keep his role in accessing Mr. Biden’s data

secret, and a few days prior to an October 14, 2020 New York Post story, Costello

reassured Mac Isaac that the New York Post had “agreed to keep [Mac Isaac’s name]

out.” No one would know he was “the source” for it all. (¶ 39 (quoting American

Injustice at 72).) Yet, the data Mac Isaac copied, manipulated, and distributed would

ultimately become the source material used by many Trump allies, including Garrett

Ziegler—who uploaded troves of Mr. Biden’s purported, unverified data to

marcopolousa.org and BidenLaptopMedia.com, including nearly 9,000 photos and

videos. (¶ 41.)

Mac Isaac continues to unabashedly make social media and podcast

appearances revealing his intrusion into, and publication of, Mr. Biden’s sensitive

data, even participating in a campaign rally for then-U.S. Senate candidate Jackson

Lahmeyer where attendees could purchase a thumb drive containing Mr. Biden’s

data. (¶¶ 54–57.) In April 2023, Mac Isaac appeared alongside Giuliani to accept

an honor at a Republican fundraiser, which billed him as the “Hunter Biden Laptop

Repairman” and sold sponsorships for as much as $25,000. (¶ 58.) Disregarding

the pain and suffering he caused Mr. Biden (Mr. Biden has been chased and harassed

by people yelling “Laptop from Hell” and “pedophile” and has had to move homes

three times), Mac Isaac continues to promote and re-publish the contents of the data

he unlawfully reviewed, copied, and disseminated. (¶¶ 46, 57–58, 60.)

6
 ARGUMENT

I. MOTION TO DISMISS STANDARD.

“The governing pleading standard in Delaware to survive a motion to dismiss

is reasonable ‘conceivability.’” Deere & Co. v. Exelon Generation Acquisitions,

LLC, 2014 WL 904251, at *3 (Del. Super. Ct. Mar. 7, 2014). “A complaint will

survive a motion to dismiss if it states a cognizable claim under any ‘reasonably

conceivable’ set of circumstances inferable from the alleged facts.” Blaskovitz v.

Dover Fed. Credit Union, 2017 WL 2615748, at *5 (Del. Super. Ct. June 15, 2017)

(quoting Winshall v. Viacom Int’l Inc., 76 A.3d 808, 813 n.12 (Del. 2013)). A court

must “limit its review of the motion to dismiss to the well-pleaded allegations in the

complaint, but will draw all reasonable factual inferences in favor of the non-moving

party.” O’Neill v. AFS Holdings, LLC, 2014 WL 626031, at *3 (Del. Super. Ct. Jan.

15, 2014). This “conceivability” pleading standard asks whether there is “any, even

a remote, possibility of recovery.” Deere & Co., 2014 WL 904251, at *3.

Disregarding the bedrock principle that a motion to dismiss is limited to the

well-pleaded allegations in the complaint, Mac Isaac improperly asserts his own new

set of factual allegations, not included in either the Counterclaims or SAC. This

Court cannot consider these new “facts,” which represent nothing more than an overt

political stunt. Specifically, Mac Isaac uses his Motion to shoehorn what he labels

“actual facts” into the pleadings, offering his own assertions about, for instance,

Giuliani’s role in the relevant events, Mac Isaac’s “financial capitalization,” and two

7
paragraphs about “Biden’s Book.” (Mot. at 7–13.) He also relies upon Wells Fargo

“financial records” neither incorporated in nor attached to the SAC. (Mot. at 17.)

Improper motives and political agendas aside,5 these tactics by Mac Isaac are

inappropriate and underscore the considerable factual issues in dispute here.6

The assertions from Mac Isaac, strategically named “actual facts”—only

added for gratuitous consumption by right-wing press and hardly used in the

Motion’s substantive arguments—contradict Mac Isaac’s own sworn deposition

testimony from May 31, 2023. For example, Mac Isaac muses in his Motion that,

“[t]he best files to use in this verification [of data] are video files” and he “opened

some of the larger video files” to check whether corrupted. (Mot. at 9.) Yet, he

testified under oath that sometime in April 2019, he studied a PDF file titled

“income.pdf” because he was curious about Mr. Biden’s wealth. See Mac Isaac Dep.

5
Mac Isaac admits that he has recently been coordinating and communicating with
Republican Congressional representatives, including “[a] staff member from Darrell
Issa’s office[,] [a] staff member from Jim Jordan’s office[,] [a] staff member from
Gaetz’s office[,] [a]nd [staff in] Comer’s office,” who are using the data Mac Isaac
copied and distributed as fuel for their Biden family investigation. (¶ 60); Mac Isaac
Dep. Tr. at 415:7-17.
6
Playing partisan politics, at the time of filing his Motion, Mac Isaac teamed up with
the New York Post to publicize select portions of Mr. Biden’s deposition testimony,
to discredit and ridicule Mr. Biden. Mac Isaac relies upon these new allegations in
Section III of his brief, even though they were not included in the SAC or Mr.
Biden’s Counterclaims, and thus cannot be offered in Mac Isaac’s Motion or
considered by this Court. (Mot. at Sec. III). See generally Miranda Devine, Hunter
Biden claims he was ‘embarrassed’ by laptop in deposition – but still denies it or
contents are his, N.Y. POST (Sept. 7, 2023), https://nypost.com/2023/09/07/hunter-
biden-says-he-was-embarrassed-by-laptop-in-deposition/.

8
Tr. at 45:4-8 (explaining that he opened the document because it was peculiarly “out

of [Mr. Biden’s] folder full of faces files” and “was the only one with a purple dot.

So . . . I chose to click on it.”). Mac Isaac also writes that he “now know[s] who

[Mr. Biden] was when he walked into the shop” (Mot. at 8), despite admitting under

oath that he “wasn’t a hundred percent sure” who walked into his shop when

speaking with reporters on October 14, 2020. (Mac Isaac Dep. Tr. at 70:2-6). And,

as to The Mac Shop, Mac Isaac claimed that he closed his business “[o]ut of concerns

for his own safety” and “as a result of the Biden Presidential campaign-led

backlash.” (Mot. at 12.) Yet, in sworn testimony, when asked why the shop closed

in November 2020, Mac Isaac would not claim backlash under oath and instead

simply said, “I told [the co-owners] it was time to close the shop” and they agreed.

(Mac Isaac Dep. Tr. 378:19-379:4). By inserting “actual facts,” Mac Isaac exposes

his Motion for what it really is: a political mouthpiece, riddled with inconsistencies

and contradictions unsupported by factual allegations.

II. MR. BIDEN’S COUNTERCLAIMS ARE TIMELY UNDER

DELAWARE’S TWO-YEAR STATUTE OF LIMITATIONS FOR
INVASION OF PRIVACY.
Delaware law recognizes a two-year statute of limitations for invasion-of-

privacy claims, and Delaware courts apply the “time of discovery” rule to such

invasions. Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 319 (Del. 2004)

(“[T]he statute will begin to run only ‘upon the discovery of facts constituting the

9
basis of the cause of action or the existence of facts sufficient to put a person of

ordinary intelligence and prudence on inquiry which, if pursued, would lead to the

discovery of such facts.’”) (internal quotations omitted) (emphasis in original); see

also Del. Code Ann. tit. 10, § 8119 (West). “This tenet, well recognized in

Delaware, states that, in cases where a plaintiff is ‘blamelessly ignorant’ of an

‘inherently unknowable injury,’ that statute of limitations does not begin to run until

the ‘harmful affect first manifests itself.’” White v. Riego, 2005 WL 516850, at *2

(Del. Super. Ct. Mar. 3, 2005) (in denying motion to dismiss invasion-of-privacy

claims, the court found that because defendant concealed his bad acts, “plaintiffs

were blamelessly unaware of the torts until [they] discovered the pornographic

images,” at issue and further that “the injury, namely shame and embarrassment, was

‘inherently unknowable’ until this discovery.”). The statute of limitations for civil

conspiracy and aiding-and-abetting is the same as the underlying tort (here, two

years). See Del. Code Ann. tit. 10, § 8119 (West).

A. Until the November 22, 2022 Release of Mac Isaac’s Book, Mr.
Biden Did Not Know and Could Not Have Known the Extent to
Which His Privacy Was Intruded.

The statute of limitations from Mac Isaac’s invasion into Mr. Biden’s

seclusion will not expire until at least November 22, 2024, two years after Mac Isaac

published the previously unknown details of his intrusion into Mr. Biden’s private

life. Mac Isaac asserts, without a shred of proof, that Mr. Biden knew of the

10
unauthorized review, copying, and tampering of his data prior to the release of Mac

Isaac’s book. (Mot. at 12.) That hypothesis ignores that until Mac Isaac published

his activity in a tell-all book on November 22, 2022, Mr. Biden had no knowledge

and was blamelessly unaware of the many private actions Mac Isaac took in 2019,

2020, 2021, and most of 2022 with respect to his private data. (¶ 9.) Prior to

publication of the book there was no opportunity for Mr. Biden to learn, for example,

that Mac Isaac: (i) first accessed Mr. Biden’s private data (without consent) on or

around April 13, 2019; (ii) created a “clone” of the data in July 2019; (iii) “sent a

hard drive containing the data to his father, Steve Mac Isaac” in September 2019; or

(iv) “sent a copy of the data to Rudy Giuliani’s lawyer, Robert Costello on August

28, 2020.” (Mot. at 14–15.)

Mac Isaac’s Motion asserts that the statute of limitation expired two years

after Mac Isaac first accessed Mr. Biden’s data in April 2019 (Mot. at 14–15), but

such an assertion ignores Delaware’s “time of discovery” rule. Until book

publication, Mr. Biden could not have known that Mac Isaac watched videos of

“Hunter [] performing a sex act while filming himself and lighting and hitting a crack

pipe at the same time” (¶ 14 (quoting American Injustice at 30)) or, that Mac Isaac

rummaged through his financial documents, even reviewing a file titled,

“income.pdf” that Mac Isaac described as “begging to be clicked open.” (¶ 12

(quoting American Injustice at 17).) The book also lays out with painstaking

11
specificity previously unknown details about how Mac Isaac worked with Apelbaum

in October 2020 to try to create a forensic image of the data and distributed copies

to others including his father, uncle, Costello, and a close friend. (¶¶ 17–47.) The

totality of newly disclosed details in Mac Isaac’s book reveals intrusions into Mr.

Biden’s privacy, which were impossible for Mr. Biden to discover prior to the book’s

release.

B. Though Media and Podcast Appearances Where He Shares Mr.

Biden’s Private Data, Mac Isaac Continues to Invade Mr. Biden’s
Privacy through Publicization.

Mac Isaac’s invasion of Mr. Biden’s privacy through publication has

persisted, as Mac Isaac continues to publish and re-publish private facts about Mr.

Biden in media appearances and podcast interviews. For example, in a Fox News

interview in May 2022, Mac Isaac discussed that in reviewing Mr. Biden’s data, he

“realized there was a considerable amount of pornography on this computer,” and

described it as “homemade porn,” including videos of Mr. Biden “smoking crack

and engaged in sex trade.” (¶ 55 (quoting Mac Isaac on The Will Cain Podcast).)

In July 2022, during an interview with media site Real America’s Voice, Mac Isaac

claimed he “saw a lot of inappropriate behavior [involving Mr. Biden] with family

members” in the data’s contents. (¶ 54.) These publications and re-publications of

private facts by Mac Isaac are abundant, and toll the relevant limitations period until,

at the earliest, two years after Mac Isaac’s latest-known appearance in July 2022.

12
 Mr. Biden’s lack of knowledge was not due to a lack of diligence; Mac Isaac

admits he “provided no information about Biden to the NY Post” for its October 14,

2020 article, nor did he “confirm any of the information presented” therein. (Mot.

at 11.) So, of course, Mr. Biden had no way of learning the extent and severity of

Mac Isaac’s invasions of privacy, or of his coordinated efforts with others like

Apelbaum, Giuliani, and Costello, until publication of such facts in media interviews

and American Injustice, which occurred in 2022.

For invasion by publication, Mac Isaac relies on the October 14, 2020 New

York Post article as a backstop for the date any injuries were sustained by Mr. Biden.

(Mot. at 15.) But this article (which Mac Isaac alleges he did not even take part in)

was a mere ripple in the tidal wave of salacious and private facts about Mr. Biden

disclosed to the world. In fact, the Post article predates publicization of Mac Isaac’s

book, his attendance at Lahmeyer’s campaign rally where Mr. Biden’s data was

displayed, discussed, and available for purchase, and uploads by Garrett Zeigler of

troves of Mr. Biden’s purported data to the internet. Mac Isaac’s data dissemination

is at the heart of these subsequent disclosures, all of which have contributed to an

unparalleled breach of Mr. Biden’s private and personal data.

As the civil conspiracy and aiding-and-abetting claims are based on invasions

by intrusion and publication of private facts by Mac Isaac, each would have the same

statute of limitations date as described above, and they too, have not been tolled.

13
III. IT IS REASONABLY CONCEIVABLE THAT MAC ISAAC INVADED
MR. BIDEN’S PRIVACY WHEN HE INTRUDED ON HIS
SECLUSION.

Mr. Biden can demonstrate with “reasonable conceivability” that when Mac

Isaac, “every evening,” searched and scrutinized Mr. Biden’s electronically stored

data—data that Mac Isaac was not authorized to access—he invaded Mr. Biden’s

seclusion. To prove a claim of intrusion upon seclusion, Mr. Biden must show that

Mac Isaac “intentionally intruded, physically or otherwise, on 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, 2020 WL 3412701, at *10

(Del. Super. Ct. June 22, 2020), aff’d, 250 A.3d 763 (Del. 2021); see also

Restatement (Second) of Torts, § 652B. Courts first consider whether the defendant

“intruded into a private place or otherwise intended to invade a private seclusion”

and next evaluate whether the defendant’s intrusion “was in a manner that would be

highly offensive to a reasonable person.” Dayton, 2020 WL 3412701, at *10, *12.

A. Mr. Biden’s Electronically Stored Data Was Intentionally Invaded

By the Prying Eyes of Mac Isaac.

i. Mac Isaac has no contractual right to Mr. Biden’s private

data.

Mac Isaac argues that because Mr. Biden allegedly signed a contract stating

that “equipment left with the Mac Shop after 90 days of notification of completed

service will be treated as abandoned,” he has unconditional reign over Mr. Biden’s

electronically stored data. (SAC Ex. A.) This argument fails on multiple counts,

14
not the least of which is a factual dispute as to whether Mr. Biden signed any

document at all.

First, the repair authorization form singularly cedes control of an individual’s

“equipment” after 90 days, not the contents therein. In fact, the form states that The

Mac Shop will actually “make every effort” to “secure your data.” (SAC Ex. A.)

Nowhere in the repair form’s terms does the signatory abandon their right to data.

This is neither contemplated by the repair authorization form nor consistent with

industry standards under which computer repair companies routinely wipe data from

devices that are exchanged or abandoned.

Second, the contract illegitimately supersedes Delaware law regarding

abandoned property. Personal tangible property is deemed legally abandoned only

when “the rightful owner has left in the care or custody of another person and has

failed to maintain, pay for the storage of, exercise dominion or control over, and has

failed to otherwise assert or declare the ownership rights to the tangible personal

property for a period of 1 year.” Del. Code tit. 25, § 4001. The Mac Shop repair

authorization contract deems property abandoned after just 90 days, far short of

Delaware’s yearlong period. See AB Stable VIII LLC v. Maps Hotels & Resorts One

LLC, 2020 WL 7024929, at *80 (Del. Ch. Nov. 30, 2020), judgment entered, (Del.

Ch. 2021), and aff’d, 268 A.3d 198 (Del. 2021) (finding that, “[a]s a general matter,

parties are obligated to comply with the law, and Delaware law does not permit a

15
court to enforce a contract prohibited by law.”); see also In re Appraisal of

Metromedia Int’l Grp., Inc., 971 A.2d 893, 900 (Del. Ch. 2009) (“The law of

Delaware governing contracts is clear: a valid contract will be enforced unless the

contract violates public policy or positive law, or unless a party’s non-performance

is excused.”).

Third, the repair authorization form terms ignore the steps required to obtain

lawful title over someone’s “abandoned” property. To obtain title, after one year,

the person in possession of the property must first file a petition in a court of

competent jurisdiction. Del. Code tit. 25, § 4003. Then, the court must alert the

owner by posting notice in five or more public places and advertising the petition in

a published newspaper. See Del. Code tit. 25, § 4003(b). Mac Isaac did not take

any of these steps before claiming rights to Mr. Biden’s property, which, per the

terms of his repair authorization form, only included equipment, not underlying data.

Fourth, Mac Isaac makes the conclusory argument that because Mr. Biden did

not pay for his services, he breached the contract. (Mot. at 20.) This argument is

improperly based on facts outside the record, which cannot be considered by this

Court. It also assumes, without evidence, that Mr. Biden signed the repair

authorization form and thereafter was given an opportunity to collect his data and

pay for Mac Isaac’s services.

16
 ii. By rummaging through Mr. Biden’s data immediately after
coming into possession of it, Mac Isaac invaded Mr. Biden’s
privacy.

Even accepting Mac Isaac’s contract analysis as valid, which we do not

concede, he still intruded on Mr. Biden’s seclusion by not even waiting the full 90

days7 required by his own contract before unlawfully delving into Mr. Biden’s

electronically stored data.

In his book, Mac Isaac describes immediately examining “emails and files,

matching places and names with dates and times.” (¶ 11 (quoting American Injustice

at 52).) He details for his readers, shortly after April 12, 2019, surveying three years

of Mr. Biden’s taxable income. (¶ 12.) He recounts, during the same time, watching

videos of Mr. Biden “performing a sex act while filming himself and lighting and

hitting a crack pipe at the same time.” (¶ 14 (quoting American Injustice at 30).)

The viewing of such information without consent is, in fact, a criminal offense under

Delaware law. See Del. Code Ann. tit. 11, § 1335 (a)(4), (a)(9) (West)8; see also

7
While the repair authorization form states that property is deemed abandoned “after
90 days of notification of completed service,” there are not sufficient facts to know
whether or when Mac Isaac contacted Mr. Biden to inform him of completed service.
Therefore, for the purposes of this Motion, we are considering the 90-day window
to begin on the date the authorization form was allegedly signed by Mr. Biden, April
12, 2019.
8
A person is guilty of a violation of privacy when that person a) “[i]ntercepts without
the consent of all parties thereto a message by telephone, telegraph, letter or other
means of communicating privately” or b) knowingly reproduces or distributes “a
visual depiction of a person who is nude, or who is engaging in sexual conduct, when
the person knows or should have known that the reproduction, distribution,

17
Dayton, 2020 WL 3412701, at *10 (in finding that counterclaim defendant’s

seclusion was violated by counterclaim plaintiff, the court considered the relevant

Delaware criminal statutes under which plaintiff’s intrusion was illegal).

In Dayton, the court found that counterclaim defendant’s seclusion was

invaded when a neighbor captured over a hundred images and recorded private

conversations using a motion-activated camera. 2020 WL 3412701, at *12. Even

though the photos and videos were taken when counterclaim defendant was outside

their home, the court found that he had a reasonable expectation of privacy in his

backyard. Id. at 11; cf. Lee ex rel. B.L. v. Picture People, Inc., 2012 WL 1415471,

at *3 (Del. Super. Ct. Mar. 19, 2012) (where plaintiff consented to her son’s photo

being taken, the court did not find defendant-photographer’s use of certain photos

an invasion of privacy).

Where in Lee, the plaintiff consented to having photos taken by a

photographer, here, Mr. Biden did not similarly consent to having a computer

repairman scour his private data. In fact, the repair form specifies that Mac Isaac

was to perform only “data recovery.” (SAC Ex. A.) Mr. Biden’s privacy invasion

is more like that in Dayton, where hundreds of videos and private conversations—

exhibition, publication, transmission, or other dissemination was without the consent

of the person depicted and that the visual depiction was created or provided to the
person under circumstances in which the person depicted has a reasonable
expectation of privacy.” Del. Code Ann. tit. 11, § 1335 (a)(4), (a)(9) (West).

18
not just a handful of photos—were secretly taken from a place where privacy was

reasonably expected. If one has a reasonable expectation of privacy in their

backyard, then such an expectation must extend to an individual’s even more private

electronic data.

As a pretense for his egregious violation of Mr. Biden’s privacy, Mac Isaac

asserts that he needed to view files “to check for data corruption” and was “invited”

by Mr. Biden to do so. (Mot. at 19–20.) Such a justification for sifting through Mr.

Biden’s personal information in what amounted to a nightly snooping routine is

outrageous in light of Mac Isaac’s accounts from his own book, ironically titled,

American Injustice: My Battle to Expose the Truth.

B. A Reasonable Person Would Find a Stranger Combing Through

Their Personal Communications, Memories, and Finances Highly
Offensive.

Any reasonable person would find it “highly offensive” to have their finances,

emails, business documents, photos, and videos, especially those displaying lewd or

naked images, closely scrutinized by a stranger. This is true of even Mac Isaac who,

in delving into data, felt “uncomfortable” and acknowledge that the files he perused

were “none of [his] business.” (¶ 10 (quoting American Injustice at 15, 46).)

Plaintiff, understanding that a reasonable person would never expect a

computer repairman to copy and disseminate their private and confidential data—

and thus would find its occurrence highly offensive—instead baldly asserts that Mr.

19
Biden cannot be treated as a reasonable person because he shared “sexually explicit

photos” on Pornhub and lacked “concern about using his father’s political ties to

close deals with foreign countries[.]” (Mot. at 20–21.) These assertions are neither

supported by the facts in the Counterclaims, and therefore cannot be considered by

this Court, nor are true. There is no evidence to support the assertion that Mr. Biden

posted explicit images of himself to public websites. After months of relentless

investigation, there is also no evidence that Mr. Biden involved his father in any

private business dealings. 9 Such a claim would be irrelevant in any event.

Even if true, these accusations do not magically transform Mr. Biden into an

unreasonable person for whom a subjective standard should apply. Such a wild

claim has no basis in law. See Farrell v. A. C. & S. Co., 1989 WL 70870, at *7 (Del.

Super. Ct. June 12, 1989) (finding that “the reasonable person standard is an external

and objective [standard], rather than the individual judgment, good or bad, of the

particular actor; and it must be, so far as possible, the same for all persons.”) (internal

quotations and citations omitted). Plaintiff does not cite to a single case, let alone a

privacy case, applying a subjective standard to the reasonable-person analysis.

Accordingly, it is more than reasonably conceivable that by scouring personal

data without warrant or ownership, Mac Isaac invaded Mr. Biden’s seclusion. What

9
Luke Broadwater, House Republican Report Finds No Evidence of Wrongdoing by
President Biden, N.Y. TIMES (May 10, 2023), https://www.nytimes.com/2023/05/
10/us/politics/hunter-biden-house-republicans-report.html.

20
is worse, Mac Isaac went on to publish his findings.

IV. MAC ISAAC INVADED MR. BIDEN’S PRIVACY WHEN HE

PUBLISHED DETAILS OF MR. BIDEN’S PRIVATE LIFE.

It is more than reasonably conceivable that by making numerous copies of Mr.

Biden’s electronically stored data, distributing those copies to several people

(including some with large social media followings), writing and publishing a book

dissecting the contents of the data, and then utilizing said contents in various

activities, Mac Isaac invaded Mr. Biden’s privacy. “One who gives publicity to a

matter concerning the private life of another is subject to liability to the other for

invasion of privacy, if the 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.”

Barker v. Huang, 610 A.2d 1341, 1350 (Del. 1992); see also Restatement (Second)

of Torts, § 652D. “[Publicity] is [] a communication that reaches, or is sure to reach,

the public.” Atamian v. Gorkin, 1999 WL 743663, at *3 (Del. Super. Ct. Aug. 13,

1999), aff’d, 746 A.2d 275 (Del. 2000). To give “publicity” to a matter means to

make it 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.” Id.

21
 A. By Sending Copies of Mr. Biden’s Data to Family, Friends, and
Individuals with Large Public Profiles and then Publishing the
Data in a Tell-All Book, Mac Isaac Revealed Mr. Biden’s Private
Information in a Manner “Sure to Reach the Public.”

Through a long list of disclosures, Mac Isaac disseminated Mr. Biden’s

electronic data such that it was certain not just to “reach the public” but also to

proliferate in the news.

Mac Isaac first disseminated the data to friends and family. He mailed a copy

to his father in September 2019, handed a “secret” copy to his friend in October

2019, and gave another copy to his uncle. (¶¶ 23, 26–27.) He also enlisted

Apelbaum to help create a forensic image of the data and allowed Apelbaum to retain

a copy. (¶ 19.) The list continues. On August 28, 2020, after communicating with

Giuliani’s lawyer, Robert Costello, about their ability “to get the information to the

right places,” Mac Isaac shipped him a copy of the drive. (¶¶ 29–31 (quoting the

Daily Mail and N.Y. Mag.).) Mac Isaac then assisted Costello “in making bootable

copies of the drive so other people [Costello] was working with could have access.”

(¶ 35 (quoting American Injustice at 65).) Costello, in concert with Mac Isaac, then

worked with the New York Post to publish the private electronically stored data. (¶

39.) Mac Isaac attempted even further dissemination. He, his father, and his uncle,

for example, agreed in September 2020 to reach out to a former Fox News executive,

hoping the data would reach then-anchor, Tucker Carlson. (¶ 28.) Mac Isaac, in

22
September 2020, also contacted Senator Ron Johnson’s office to further spread the

private electronic data. (¶ 36.)

Mac Isaac relies on Spence v. Cherian for the proposition that communicating

“a fact concerning one’s private life to just one person, or even to a small group” is

not a privacy invasion. 135 A.3d 1282, 1288 (Del. Super. Ct. 2016). But in Spence,

a pharmacist inadvertently shared a patient’s prescription with only the patient’s

father, who in turn shared the same information with the patient’s mother. Such a

minor disclosure of a prescription to one’s parents is incomparable to Mac Isaac’s

dissemination of thousands of sensitive photographs, videos, and communications

to the world.

Mac Isaac claims that his distributions were merely to seek advice, ensure his

safety, and assist then-President Trump in his impeachment trial. Such justifications

are not only irrelevant to an invasion-of-privacy-by-publication claim (and actually

support the claim of disclosure), but are unbelievable considering Mac Isaac’s mass

dissemination efforts. Disclosures in a book, communications to a former Fox News

executive, and dissemination to and assistance with making copies for further

transmission to then-President Trump’s lawyer “to get the information to the right

places” must be “communication[s] that reach[], or [are] sure to reach, the public.”

(¶ 29 (quoting the Daily Mail and N.Y. Mag.).)

23
 Mac Isaac’s claim that he only spread the information “to a small group for

specific purposes” also flies in the face of his public acts. Throughout 2021, 2022,

and 2023, Mac Isaac made several media and podcast appearances where he

discussed the private data through which he shamelessly rummaged. (¶¶ 54–55, 58.)

In May 2022, he even joined then-U.S. Senate Republican candidate Jackson

Lahmeyer on stage at a campaign rally where attendees could purchase souvenir

thumb drives containing the data. (¶ 56.) In a similar vein, in April 2023, Mac Isaac,

alongside Giuliani, accepted an honor at a Republican fundraiser, which advertised

his appearance and sold sponsorships for as much as $25,000. (¶ 58.) Even if

podcasts, award ceremonies, and rallies exploiting Mr. Biden’s private life did not

communicate private matters to “the public at large” (and they did), Mac Isaac went

much further; he published a tell-all book about his intrusions into Mr. Biden’s

private life that remains for sale.

B. A Subjective Reasonableness Standard Is Inapplicable in Privacy

Cases, Especially Where, as Here, the Defendant Is a Reasonable
Person Mercilessly Subjected to Highly Offensive Actions.

A reasonable person would be “highly offended” if their private information,

including detailed financial information, family photos, and sexual videos were

broadcast to the world. Mac Isaac concedes that publication of this sensitive

information is highly offensive to a reasonable person, only arguing that such

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

24
(Mot. at 24) (emphasis added). Mac Isaac cites no facts to support the notion that

Mr. Biden is an unreasonable person. He also fails to cite any cases applying a

subjectively reasonable-person analysis to a privacy case. See supra Section III.b.

C. Mr. Biden Is a Private Person Whose Intimate Photos and Videos

and Private Finances Are of No Legitimate Public Concern.
Mr. Biden is a private person who has never held any public office. It is

reasonably conceivable that his personal photos, videos, finances, and

communications are of no legitimate public concern. An individual cannot

manufacture a “legitimate public concern” by injecting a private matter into the

public domain and improperly giving publicity to the matter, thereby creating the

public interest he asserts as a defense. See Brittingham v. Topping, 2014 WL

4382998, at *13 (Del. Super. Ct. July 31, 2014), aff’d, 2015 WL 1604851 (Del. Apr.

7, 2015) (finding that something needs to be “a subject of general interest and of

value and concern to the public at the time of publication.”) (emphasis added).

Cases finding that disclosed information was “of legitimate concern to the

public” involved scenarios where a member of the media, in conjunction with a

legitimate news story, disclosed information that was gathered without unreasonably

intrusive conduct. See Wallace v. Cap. Cities/ABC, Inc., 1989 WL 100423, at *1

(Del. Super. Ct. Aug. 29, 1989) (finding that where a media outlet filmed what could

be viewed by “any other member of the general public … from the sidewalk” its

conduct was not unreasonably intrusive); Martin v. Widener Univ. Sch. of L., 1992

25
WL 153540, at *19 (Del. Super. Ct. June 4, 1992) (finding that where plaintiff

himself disclosed information to reporters, and thus “invited the discussion and

publicity to this part of his life,” he could not then “complain of the publicity he

himself ha[d] engendered.”).

Unlike that of plaintiff in Wallace, Mr. Biden’s information was not readily

available to the public, and unlike the plaintiff in Martin, Mr. Biden did not invite

publicity by first sharing his private data with reporters. In both cases, the

information was shared by a member of the media, holding special press freedoms,

not by an intrusive lay person such as Mac Isaac. Mac Isaac, citing no law, attempts

to argue that, regardless of the private nature of Mr. Biden’s data and his own lay-

person status, he had a right to publicization. (Mot. at 24.) This argument is

analogous to the old story of the young man who murdered his parents and then

asked the court for mercy because he was an orphan. Mac Isaac put in motion the

events described in the Counterclaims that brought Mr. Biden’s private information

to public light. This is true too of Mr. Biden’s status as a public figure. Mac Isaac’s

disclosures created the controversy that launched Mr. Biden into the public sphere

during a time when neither he nor any of his family members held public office.

The public light Mac Isaac shined on Mr. Biden’s data does not otherwise

make it “of legitimate concern to the public.” No one can reasonably argue that

videos described by Mac Isaac of Mr. Biden “performing a sex act” and “hitting a

26
crack pipe” are deserving of public eyes. (¶ 14 (quoting American Injustice at 30).)

The same can be said for personal communications an individual shares with his

close friends and family and for private financial information. Indeed, this

information is precisely that which Delaware state law makes criminal to intercept,

let alone disseminate, without consent. See Del. Code Ann. tit. 11, § 1335 (a)(4),

(a)(9) (West).

D. Mac Isaac Disclosed Electronically Stored Information of

Unknown Origin, Some of Which Includes Accurate Copies of Mr.
Biden’s Personal Data.
While discovery is necessary to determine the origins and accuracy of the

electronically stored data, there is sufficient information available to conclude that

certain data represents true and correct copies of Mr. Biden’s private information.

Under Section 652D, there can only be a finding that an individual’s privacy right

was violated when “publicity [is] given to true statements of fact.” Restatement

(Second) of Torts. Plaintiff relies on Atamian v. Gorkin, but there, the court did not

reach the issue of whether disclosures were true, noting in dicta only that plaintiff

undermines his own claim by calling defendant’s statements “fictitious.” 1999 WL

743663, at *3. Mr. Biden does not make a comparable concession here. In fact, Mr.

Biden’s Counterclaims acknowledge that “at some point, Mac Isaac obtained

electronically stored data, some of which belonged to Mr. Biden.” And, that at least

some of the data accurately reflects Mr. Biden’s private information. (¶ 4 n.1.)

27
 For the foregoing reasons, it is reasonably conceivable that Mac Isaac violated

Mr. Biden’s right to privacy, by sharing with several individuals and publishing

through multiple mediums, personal information that is of no legitimate public

concern.

V. MAC ISAAC CONSPIRED WITH FRIENDS, FAMILY, AND

INDIVIDUALS WITH LARGE PUBLIC PROFILES TO INVADE MR.
BIDEN’S PRIVACY BY REVIEWING AND THEN PUBLICIZING
MR. BIDEN’S PERSONAL DATA.

In making numerous copies of Mr. Biden’s personal data, which he sent to

individuals to search and disseminate, it is reasonably conceivable that Mac Isaac

knowingly conspired to invade Mr. Biden’s privacy. “For civil conspiracy, a

plaintiff must allege: ‘(1) two or more persons; (2) an object to be accomplished; (3)

a meeting of the minds ... relating to the object or ... course of action; (4) one or more

unlawful acts; and (5) damages as a proximate result thereof.’” In re Bracket

Holding Corp. Litig., 2017 WL 3283169, at *12 (Del. Super. Ct. July 31, 2017).

“Delaware courts ‘have recognized that the nature of conspiracies often makes it

impossible to provide details at the pleading stage and that the pleader should be

allowed to resort to the discovery process and not be subjected to a dismissal[.]’”

Szczerba v. Am. Cigarette Outlet, Inc., 2016 WL 1424561, at *2 (Del. Super. Ct.

Apr. 1, 2016) (internal citations omitted).

Mac Isaac is individually liable for invasion of Mr. Biden’s privacy, but he

did not act alone. See supra Sections III, IV. Even without discovery, we know that

28
Mac Isaac provided copies of the data (in whole or in part) to Apelbaum, his father,

his uncle, Riley, and Costello, to share with Giuliani. (¶¶ 19, 23, 26–27, 31.) Mac

Isaac knew that these individuals intended to comb through Mr. Biden’s data in such

a manner that any reasonable person would find highly offensive. Thus, in providing

each individual a copy of the private material, he conspired to violate Mr. Biden’s

right to seclusion and in so doing caused Mr. Biden the same considerable harm and

embarrassment any reasonable person would feel had several ill-intending strangers

scoured their personal data.

Many of the same individuals who received and rummaged through Mr.

Biden’s data then conspired with Mac Isaac to violate Mr. Biden’s privacy through

mass publicization of the information. Mac Isaac provided Riley a copy with the

specific instruction that she hand-deliver it to Giuliani “should something happen

to” Mac Isaac. (¶ 26 (quoting American Injustice at 76).) He also worked with his

uncle and father to further attempt to disseminate Mr. Biden’s data to Tucker Carlson

with the intent that the contents be widely publicized. (¶ 28.) Mac Isaac also knew

that his uncle sent at least summaries of the data to his nephew, journalists, and

Republican members of Congress. (¶ 27.) Similarly, Mac Isaac specifically sought

out Costello, who informed Mac Isaac of his intent to pass the information on to

Giuliani. (¶ 29.) Mac Isaac “agreed” to provide the pair with additional information

for use in then-President Trump’s defense and presidential campaign. (¶ 35 (quoting

29
American Injustice at 65).) He even “assisted” Costello in making “bootable copies”

for Costello’s associates. (Id.) Costello later shared the data with Bannon, who gave

at least some of the data to others to disseminate, including Guo Wengui and Jack

Maxey (an associate of Bannon’s War Room podcast). (¶¶ 37–38, 42.) While this

alone is sufficient to create a conspiracy to publicize Mr. Biden’s sensitive personal

memories, communications, and finances, the mass broadcasting conspiracy carried

on. In October 2020, Mac Isaac communicated with Costello about a plan to publish

the private data in the New York Post. (¶ 39.) Giuliani also helped share a copy of

the purported data with Ziegler, who uploaded it to his websites Marco Polo and

BidenLaptopMedia.com. Zeigler published nearly 9,000 photos and videos

allegedly all from Mr. Biden’s electronic data (many of the which are lewd and show

Mr. Biden naked or engaged in private sexual activity). (¶¶ 40–41.)

All of the published information came from one original source: Mac Isaac.

And he worked closely with each co-conspirator to help unlawfully publicize Mr.

Biden’s data. In spawning the media frenzy regarding legitimately private

information that only became public because of their own broadcasts, Mac Isaac and

his co-conspirators caused Mr. Biden extensive harm and embarrassment. Mr. Biden

has been chased and harassed by people yelling “Laptop from Hell” and

“pedophile,” has had to move homes three times, is constantly berated online and in

30
person, and requires security for his immediate family beyond his ordinary

protection. (¶ 46.)

VI. BY ASSISTING NUMEROUS INDIVIDUALS IN SECURING AND

THEN DISSEMINATING PRIVATE ELECTRONIC DATA, MAC
ISAAC AIDED AND ABETTED THE INVASION OF MR. BIDEN’S
PRIVACY.

It is reasonably conceivable that Mac Isaac aided and abetted the same

individuals with whom he conspired to intrude on Mr. Biden’s seclusion and

publicize his private matters. In Delaware, “[t]o state an aiding and abetting claim,

a plaintiff must show: (1) underlying tortious conduct, (2) knowledge, and (3)

substantial assistance.” In re Bracket Holding Corp. Litig., 2017 WL 3283169, at

*12 (Del. Super. Ct. July 31, 2017). “Conspiracy involves concerted action by

agreement, whereas aiding and abetting concerns concerted action by substantial

assistance.” Id. (internal citations omitted). “[A]iding-abetting liability may flow

from negligent conduct” where “knowledge is imputed to each actor by virtue of

participation in the common scheme.” Anderson v. Airco, Inc., 2004 WL 2827887,

at *4–5 (Del. Super. Ct. Nov. 30, 2004).

The lesser standard for aiding and abetting, as compared to conspiracy,

requires only that Mac Isaac acted negligently in substantially assisting others in

invading Mr. Biden’s privacy. Of course, by providing Apelbaum, his father, his

uncle, Riley, Costello, and Giuliani copies of Mr. Biden’s data, Mac Isaac must have,

at a minimum, provided each of them substantial assistance in intruding on Mr.

31
Biden’s seclusion. See supra Section V. Mac Isaac then took concerted actions,

working with these same individuals, to broadcast Mr. Biden’s private life. In so

doing, he, at least, substantially assisted others in publicizing Mr. Biden’s private

life. See supra Section V.

In working with numerous individuals to eviscerate Mr. Biden’s privacy by

first studying his most intimate photos, videos, communications, and documents and

by next shamelessly displaying them to the world, Mac Isaac caused Mr. Biden

extreme emotional distress and embarrassment.

CONCLUSION

For the foregoing reasons, we respectfully request that this Court deny Mac

Isaac’s Motion to Dismiss Mr. Biden’s Counterclaims.

32
Dated: September 22, 2023 Respectfully submitted,

/s/ Bartholomew J. Dalton

Abbe David Lowell, Esq. (Admitted PHV) Bartholomew J. Dalton, Esq. (#808)
WINSTON & STRAWN LLP DALTON & ASSOCIATES, P.A.
1901 L Street, NW 1106 West 10th Street
Washington, DC 20036 Wilmington, DE 19806
(202) 282-5000 (ph) (302) 652-2050 (ph)
(202) 282-5100 (fax) (302) 652-0687 (fax)
AbbeLowellPublicOutreach@winston.com Bdalton@dalton.law

David A. Kolansky, Esq. (Admitted PHV)

WINSTON & STRAWN LLP
200 Park Avenue
New York, NY 10166
(212) 294-6700 (ph)
Dkolansky@winston.com

Counsel for Defendant/Counterclaim

Plaintiff Robert Hunter Biden

33
 CERTIFICATE OF COMPLIANCE

In accordance with Superior Court Rule 107(b) and 107(h)(1), excluding the

cover page, table of contents, table of authorities, signature page, and this certificate

of compliance, Defendant/Counterclaim Plaintiff’s Answering Brief in Opposition

to Plaintiff/Counterclaim Defendant’s Motion to Dismiss contains 7,989 words,

including footnotes. The brief was prepared using Microsoft Word for Microsoft

365, which was also used to count the words. It otherwise complies with Rule

107(b), as it is double-spaced, in Times New Roman 14-point font, has two spaces

between sentences, and contains single-spaced footnotes also in Times New Roman

14-point font with two spaces between sentences.

Dated: September 22, 2023 By: /s/ Bartholomew J. Dalton

Bartholomew J. Dalton, Esq. (#808)

34