Plaintiff's threats

[jonnu]

What is the name of your state (only U.S. law)? Florida


I am facing a civil defamation lawsuit alleging that I sent defamatory message from the computer in my house. Plaintiffs filed a motion and the court approved their motion for conducting forensic investigation of my computer. The court order did not ask me to do not use my computer. The court order did not provide me any special instructions on the usage of the computer. Therefore, I was using it (almost in the same way I was using, including possible deleting or erasing unnecessary information) until the forensic details were collected from the computer.

Now the Plaintiffs are threatening me for spoliation of evidence charges. What are the merits and possible outcomes of these charges?

 

[LeeHarveyBlotto]

What is the name of your state (only U.S. law)? Florida


I am facing a civil defamation lawsuit alleging that I sent defamatory message from the computer in my house. Plaintiffs filed a motion and the court approved their motion for conducting forensic investigation of my computer. The court order did not ask me to do not use my computer. The court order did not provide me any special instructions on the usage of the computer. Therefore, I was using it (almost in the same way I was using, including possible deleting or erasing unnecessary information) until the forensic details were collected from the computer.

Now the Plaintiffs are threatening me for spoliation of evidence charges. What are the merits and possible outcomes of these charges?

What does your lawyer say?

 

[tranquility]

When you are reasonably aware of litigation, you are required to retain evidence that can be used in that litigation. By continuing to use your computer without taking special precautions to protect the evidence, it is possible the plaintiff may be successful in a spoliation claim. Possibly. No one can know without all the facts.

Remedies can be most anything the court decides remedies the situation. It could have you pay for a low-level forensics on the disc or it can give some presumptions against you in evidence or go all the way to having you lose the case--it all depends.

https://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/9AD7F34E6977A64685256B28006E814A

Edit:
When I read the case referenced in the above article, the OP's statement of facts seems to indicate he is almost assuredly going to have a problem with a spoliation claim. The real question will be the sanction applied.

 

[quincy]

What is the name of your state (only U.S. law)? Florida


I am facing a civil defamation lawsuit alleging that I sent defamatory message from the computer in my house. Plaintiffs filed a motion and the court approved their motion for conducting forensic investigation of my computer. The court order did not ask me to do not use my computer. The court order did not provide me any special instructions on the usage of the computer. Therefore, I was using it (almost in the same way I was using, including possible deleting or erasing unnecessary information) until the forensic details were collected from the computer.

Now the Plaintiffs are threatening me for spoliation of evidence charges. What are the merits and possible outcomes of these charges?

Although I am afraid this does you little good now, you should have retained an attorney as soon as you received the summons and complaint indicating you were being sued for defamation. When the case centers on computer-generated defamation, a discovery request will almost always include an investigation of the computer and its contents. It is at this point your attorney would have challenged the discovery request and then moved to quash any subsequent subpoena.

It appears you have failed to address any of the actions by the plaintiffs properly and now are at risk of suffering the consequences. As tranquility noted (your link didn't work for me, by the way, tranquility), sanctions can be severe if the motion for sanctions is granted - from an adverse inference at trial which allows a jury to conclude you attempted to conceal evidence (which indicates guilt) to monetary sanctions (which can be in the multi-thousands, depending on facts).

It is important for others to note that deleting files does not delete all evidence of the files from a computer. What deleting files does is allows for additional information to be stored in place of what was deleted. Even when someone tries to "write over" the deleted files, fragments almost always remain that can be used as evidence of not only the defamation (or infringement or pornography or whatever the case may be) but also of spoliation (the intentional destruction of evidence).

What exactly did the court order say as to the forensic examination, jonnu (leaving out all personal identifying information)?

Again, although you should have had an attorney from the beginning, you definitely would be wise to have one now, to see if this attorney can assist you in salvaging any defenses you may have to the defamation claimed.

 

[tranquility]

Links are an interesting issue. My machine still will go there, but it might be a cookie or something. Google:

"Case of the Year: Strasser v. Yalamanchi"

and it should be the first article. (At least it is on mine.)

But, as the article notes, spoliation does not require an "intentional" destruction of the evidence. The Florida elements:

(1) existence of a potential civil action; (2) a legal or contractual duty to preserve evidence which is relevant to the potential civil action; (3) destruction of that evidence; (4) significant impairment in the ability to prove the lawsuit; (5) a causal relationship between the evidence destruction and the inability to prove the lawsuit; and (6) damages.

The elements can be fulfilled by negligence as it is a breach of duty.

 

[jonnu]

Thanks to everyone.

In response to Quincy's query: the key content of court order is, "the computer expert should collect the forensic image of the computer on a specific date". Other details include the name of the expert, physical address where the image should be taken, etc.

If I did not use the computer, I would have lost my job, which is the only source for my bread and butter.

 

[quincy]

Links are an interesting issue. My machine still will go there, but it might be a cookie or something. Google:

"Case of the Year: Strasser v. Yalamanchi"

and it should be the first article. (At least it is on mine.)

But, as the article notes, spoliation does not require an "intentional" destruction of the evidence. The Florida elements:
The elements can be fulfilled by negligence as it is a breach of duty.

Thanks, tranquility.

Here is a direct link to the Strasser v Yalamanchi article by Michael Cavendish (which is excellent):

https://www.floridabar.org/divcom/jn/jnjournal01.nsf/Author/9AD7F34E6977A64685256B28006E814A

I can see a few possible defenses for jonnu (depending on all facts), but it is vital for him/her to find an attorney in Florida to help him NOW before any more time passes.

I think a lot of people think that erasing what is on their computer will solve their problem - and I have even seen it suggested as a remedy on this site - but it often hurts the one being sued far more than it helps. There was a copyright infringement thread posted here a few years ago that attempted to address this (https://forum.freeadvice.com/arrests-searches-warrants-procedure-26/spoliation-evidence-557249.html).

 

[jonnu]

Thank you Quincy one more time.

The plaintiff or court did not offer any alternate computer to me (otherwise, I would have kept my computer untouched after the case was filed or after the court order was issued).

Who (court or Plaintiff) would have given me job if I lost my job in case I did not use the computer after the court order was issued? Is there any answer to my question in our legal system?

 

[quincy]

Thanks to everyone.

In response to Quincy's query: the key content of court order is, "the computer expert should collect the forensic image of the computer on a specific date". Other details include the name of the expert, physical address where the image should be taken, etc.

If I did not use the computer, I would have lost my job, which is the only source for my bread and butter.

Thank you for responding to my question, jonnu.

I was sort of afraid the court order would read something like that.

When you speak with an attorney in your area, the attorney will want to know exactly what was written by you and where it was written and to whom, and how this all led to the lawsuit. With very few exceptions that probably won't apply to you, what you say to your attorney will remain confidential - so it will be important for you to be entirely open and honest about all relevant facts.

I am hoping a copy of what you wrote exists somewhere, because there is a good chance you might have to rely on your written words, and the reasons for writing them, to get you out of this lawsuit relatively unscathed.

After a review of the case as it stands so far, the attorney you see can advise you on how best to handle things from here on out, including how to handle the plaintiff's spoliation of evidence threat. Again, I want to emphasize how important it is for you to see an attorney soon (preferably one well-versed in defamation law). I know attorneys are expensive but the losses you could suffer in a defamation suit can be substantially higher than any costs spent to defend against it.

And, to answer additional questions, second one first.

No, the legal system does not address all problems - it can't.

Unfortunately, the fallout from a lawsuit often reaches beyond the courtroom and can affect other areas of a person's life, like their jobs and their personal relationships. I hope that yours will not be affected.

I wish you good luck.

 

[jonnu]

Thank you Quincy. I will try for an attorney very soon (I am not sure if I can afford).

Yes, the court order exactly stated like the way I mentioned before. The order did not address on what to do (and when to do) on the forensic image that was taken. It just asked the computer expert to collect the image.

The Plaintiff did not provide not even a single message (defamatory or otherwise) originated from home IP address, in the lawsuit or in the subsequent discovery requests I made (in my discovery requests, I asked the Plaintiff to produce all such messages, if any, but he did not have any).

 

[Just Blue]

Thank you Quincy. I will try for an attorney very soon (I am not sure if I can afford).

Yes, the court order exactly stated like the way I mentioned before. The order did not address on what to do (and when to do) on the forensic image that was taken. It just asked the computer expert to collect the image.

The Plaintiff did not provide not even a single message (defamatory or otherwise) originated from home IP address, in the lawsuit or in the subsequent discovery requests I made (in my discovery requests, I asked the Plaintiff to produce all such messages, if any, but he did not have any).

Is this a desk top or lap top computer?

 

[jonnu]

Thanks, it is a laptop computer.

 

[Just Blue]

Thanks, it is a laptop computer.

the lack of IP proof means nothing...If you were going off a wiFI sig it would likely show as another adress anyway.

 

[jonnu]

The IP addresses, from which the alleged postings were made, are public places. Therefore, almost everyone is a potential suspect. I do not know why I was selected for filing lawsuit against.

 

[quincy]

Thank you Quincy. I will try for an attorney very soon (I am not sure if I can afford).

Yes, the court order exactly stated like the way I mentioned before. The order did not address on what to do (and when to do) on the forensic image that was taken. It just asked the computer expert to collect the image.

The Plaintiff did not provide not even a single message (defamatory or otherwise) originated from home IP address, in the lawsuit or in the subsequent discovery requests I made (in my discovery requests, I asked the Plaintiff to produce all such messages, if any, but he did not have any).

I know an attorney is expensive, jonnu. Perhaps you can see if you can borrow money for an attorney from family or friends, or perhaps you can find an attorney who can offer you a payment plan that is affordable, or there could be an attorney in a large firm who will take your case pro bono (I wouldn't count on this last option, but it wouldn't hurt to call a few firms in your area to check it out).

What the computer expert will be doing is making a copy of your computer's content to preserve it. Your attorney will try to make sure that, even though all contents of your computer will be copied, the search of your computer's content will be a narrow one.

The good news is that once the forensic image of your computer has been made, your computer will be returned and you should be able to work on it once again.

If the plaintiff did not have sufficient proof of any defamatory material originating from your computer (an IP address is often enough), this is something an attorney would have addressed at the beginning, possibly with a motion to dismiss. If the plaintiff is relying on what you have on your computer to prove his case (rather than to support what he already has in the way of evidence), there could still be a dismissal possible. Your attorney will advise you.

The fact that the plaintiff has failed to produce what you have requested in the way of discovery is something the attorney you see can work to correct. You are entitled to see what the plaintiff has, including the defamatory material he says was created and published to others by you.

I am sorry you have had to struggle with this on your own, jonnu. It is very hard to defend against a defamation lawsuit in any case, but the difficulty increases when you do not have a lawyer to assist. I hope you can remedy that soon by finding an affordable attorney in your area.

Good luck.