Plaintiff's threats

[jonnu]

The scenario is much complex than I initially explained. I made it brief earlier to directly come to the point.

I have an 19+ year old daughter lives in my house and she uses that laptop. I gave the laptop to her as a gift several months prior to the lawsuit was filed (and after the alleged defamatory messages were posted). She use the laptop for her work. I informed the plaintiff of the current owner (i.e, my daughter) of the laptop after they filed the lawsuit on me. However, neither Plaintiff nor the court contacted my daughter till date. Therefore, she was using the laptop and she did not take any extra steps to stop erasing files, etc, until the forensic image was taken. However, she voluntarily submitted the laptop for forensic imaging, based on my request to do so. She also submitted an affidavit confirming that I never used the laptop once I gave it to her as a gift.

None of us sent any defamatory messages. What are the merits in the spoliation of evidence charge that Plaintiff is claiming? If the court determines any spoliation of evidence then who (I or my daughter) should face them?

 

[Nellibelle]

The scenario is much complex than I initially explained. I made it brief earlier to directly come to the point.

I have an 19+ year old daughter lives in my house and she uses that laptop. I gave the laptop to her as a gift several months prior to the lawsuit was filed (and after the alleged defamatory messages were posted). She use the laptop for her work. I informed the plaintiff of the current owner (i.e, my daughter) of the laptop after they filed the lawsuit on me. However, neither Plaintiff nor the court contacted my daughter till date. Therefore, she was using the laptop and she did not take any extra steps to stop erasing files, etc, until the forensic image was taken. However, she voluntarily submitted the laptop for forensic imaging, based on my request to do so. She also submitted an affidavit confirming that I never used the laptop once I gave it to her as a gift.

None of us sent any defamatory messages. What are the merits in the spoliation of evidence charge that Plaintiff is claiming? If the court determines any spoliation of evidence then who (I or my daughter) should face them?

It is pretty baffling to me that the Court can order the computer to be confiscated for forensic imaging and there not be any documentation showing that such need is necessary. For instance, documentation that actually shows any defamation by you would probably be the only thing to warrant confiscation of the laptop! I guess Discovery allows it! Having said that, you should compel the Plaintiff to provide you with a precise discription of the defamation they are claiming against you.

I am sorry you don't have the funds to get an attorney, but that is the reality of many people faced with litigation. Fortunately, with a little research at the Law Library, you can probably handle putting together Interrogatories and serving it on the Plaintiff in an effort to find out what exactly it is that they are suing you for.

At this point, it is hard to say if you are liable for anything or not, but with a bit of studying, you can find out. If you find out that there really isn't a case against you, it wouldn't take too much to file a motion to dismiss.

 

[quincy]

The scenario is much complex than I initially explained. I made it brief earlier to directly come to the point.

I have an 19+ year old daughter lives in my house and she uses that laptop. I gave the laptop to her as a gift several months prior to the lawsuit was filed (and after the alleged defamatory messages were posted). She use the laptop for her work. I informed the plaintiff of the current owner (i.e, my daughter) of the laptop after they filed the lawsuit on me. However, neither Plaintiff nor the court contacted my daughter till date. Therefore, she was using the laptop and she did not take any extra steps to stop erasing files, etc, until the forensic image was taken. However, she voluntarily submitted the laptop for forensic imaging, based on my request to do so. She also submitted an affidavit confirming that I never used the laptop once I gave it to her as a gift.

None of us sent any defamatory messages. What are the merits in the spoliation of evidence charge that Plaintiff is claiming? If the court determines any spoliation of evidence then who (I or my daughter) should face them?

These are good questions to ask your attorney, jonnu.

I see several problems in what you have related so far, and I am not sure how you are going to solve all of them.

One problem is that what could have/should have been done soon after you were served apparently was not done (e.g., a motion to dismiss). Another problem is that the discovery requests made by the plaintiff were apparently not addressed properly, which could have prevented the court order for a forensic exam of your computer. And another problem is that your computer has had alterations/deletions made to it that, had they not been made, could have shown there was no defamatory content and now could potentially, by inference, support a spoliation of evidence claim.

The spoliation of evidence claim appears to have some merit. Because you are the one being sued, you would be the one against whom the claim would be leveled, not your daughter. But the attorney you see will look at the dates and times of all events leading up to the lawsuit and will look at the dates and times of all that has occurred since you were served, and s/he will work with this to help you with your defenses.

The plaintiff appears to have worked to his advantage the fact that you have not have an attorney.

I wish you good luck.


edit to add: A law library is not going to be enough to get you out of this suit, jonnu, so PLEASE do not try to do this on your own.

 

[Nellibelle]

Surprisingly, I agree with Quincy here! What is the reason you didn't file a Demurrer against the Plaintiff? Did you even file an Answer within the 30 day period in which to do so? At this point (with a bit of research), you can still find out if there is a legitimate case against you and file a Motion to Dismiss if the Plaintiff cannot prove you defamed them. If you cannot figure out how to handle your defense of this matter, it will probably get pretty costly to have an Attorney help you.

 

[quincy]

Surprisingly, I agree with Quincy here! What is the reason you didn't file a Demurrer against the Plaintiff? Did you even file an Answer within the 30 day period in which to do so? At this point (with a bit of research), you can still find out if there is a legitimate case against you and file a Motion to Dismiss if the Plaintiff cannot prove you defamed them. If you cannot figure out how to handle your defense of this matter, it will probably get pretty costly to have an Attorney help you.

Why is it surprising to you that you would agree with me? I have been a member of this forum for a long time and I have worked with defamation law for an even longer time. You came here in April of this year for the first time with legal questions that members of this forum had to answer for you. I am, in other words, puzzled by your response.

There is very little jonnu can do at this point to help him/herself with this defamation suit and the spoliation of evidence claim. If you read the thread, you would see that the plaintiff has already been unresponsive to jonnu's requests for documentation. A motion to dismiss after an order for a forensic examination of jonnu's computer seems unlikely - certainly not something jonnu should attempt without an attorney who can see exactly where the case stands. The court would not have ordered the computer examination without some evidence presented by the plaintiff of the need for the forensic imaging.

jonnu, I will repeat what I have said in each of my posts to this thread - you NEED an attorney to help you. Researching and attempting to file motions at this point is not something you should attempt on your own. You should spend your time now looking for an attorney in your area.

 

[Nellibelle]

Why is it surprising to you that you would agree with me? I have been a member of this forum for a long time and I have worked with defamation law for an even longer time. You came here in April of this year for the first time with legal questions that members of this forum had to answer for you. I am, in other words, puzzled by your response.

There is very little jonnu can do at this point to help him/herself with this defamation suit and the spoliation of evidence claim. If you read the thread, you would see that the plaintiff has already been unresponsive to jonnu's requests for documentation. A motion to dismiss after an order for a forensic examination of jonnu's computer seems unlikely - certainly not something jonnu should attempt without an attorney who can see exactly where the case stands. The court would not have ordered the computer examination without some evidence presented by the plaintiff of the need for the forensic imaging.

jonnu, I will repeat what I have said in each of my posts to this thread - you NEED an attorney to help you. Researching and attempting to file motions at this point is not something you should attempt on your own. You should spend your time now looking for an attorney in your area.

I totally agree that Jonnu should try to get an Attorney. But he did say that he may not be able to afford one. My point is that rather than not having an attorney and simply being forced to lose via default by not doing anything at all, he should attempt to use the Law Library in an effort to at least contest the case.

Also, if the Plaintiff presented any evidence warranting confiscation of the laptop, the Defendant should also be aware of such evidence. I suspect the factual pleadings alone allowed the plaintiff to be successful with his motion to have the computer taken. Rather than do nothing at all, Jonnu should try to find out why the Plaintiff is saying they were defamed by him, but he has to do it according to the rules of the Court. He can only do this with an Attorney (if he can afford it) or by spending some serious time studying in the Law Library! To simply give up and not do anything about it wouldn't be a good thing to do.

 

[I'mTheFather]

Here's just one example of the reason OP must retain an attorney:

http://usatoday30.usatoday.com/news/nation/2006-10-10-internet-defamation-case_x.htm

I have no idea what OP's case is, or what he's being sued for, so I don't know if the case is relevant. However, the damages awarded in the linked case should make it clear that OP needs a lawyer. He really can't afford NOT to have one.

 

[quincy]

I totally agree that Jonnu should try to get an Attorney. But he did say that he may not be able to afford one. My point is that rather than not having an attorney and simply being forced to lose via default by not doing anything at all, he should attempt to use the Law Library in an effort to at least contest the case.

Also, if the Plaintiff presented any evidence warranting confiscation of the laptop, the Defendant should also be aware of such evidence. I suspect the factual pleadings alone allowed the plaintiff to be successful with his motion to have the computer taken. Rather than do nothing at all, Jonnu should try to find out why the Plaintiff is saying they were defamed by him, but he has to do it according to the rules of the Court. He can only do this with an Attorney (if he can afford it) or by spending some serious time studying in the Law Library! To simply give up and not do anything about it wouldn't be a good thing to do.

Okay, Nellibelle. What exactly do you think jonnu should look up and study in the law library that is going to help, given what we know from this thread? And how long does jonnu have to do this?

Sending someone to a law library is not going to help a lot without direction on what to do once there.

And, as I'mTheFather's link illustrates, spending time in a library instead of spending time with an attorney at this point can be an extremely costly mistake.

 

[jonnu]

I thank Quincy and everyone else responded.
I will look for attorney.

In the mean time, as an answer to Quincy’s questions “One problem is that what could have/should have been done soon after you were served apparently was not done (e.g., a motion to dismiss).” I filed a response to the case and did not file motion to dismiss. When the plaintiff filed motion for forensic, I submitted my response very late (but before the hearing date), almost on the last day, to the court and probably judge did not read it before she made the judgment.

current status:
Now, Plaintiff filed a motion asking the court to give permission to obtain additional information from forensic image before he actually conduct the forensic exam (it seems to me that his strategy is: once he knows what content is there in the forensic image, he will sharpen his weapon while filing the actual spoliation of evidence charge). He asked me to agree for such permission and I refused therefore he filed the motion to obtain additional information from forensic image. Now I am facing this motion and expecting spoliation of evidence charge once the court rules (pray not) in favor of this motion and once the content of the image revealed that the evidence was disturbed after the court order.

As a side note: how will I be responsible for the damage, if any, done to the content of the computer because of my daughter's actions on it? She is an adult (but depend on me) and she was never notified by the court or plaintiff to stop using it.

what if I asked my daughter to minimize the usage of the computer but she neglected or forgot my advise?

 

[tranquility]

Spoliation is a tort and can be prosecuted against both a party and a non-party to a suit.

 

[jonnu]

Thank you.

I just read the article at:
http://www.butlerpappas.com/440
and another article at:

http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/c0d731e03de9828d852574580042ae7a/8261f92eab3e28088525719a00565338!OpenDocument&Highlight=0,*

does it help me in any way?

 

[quincy]

The only thing I can really see that will help you, jonnu, is sitting down with an attorney in your area.

You seem dangerously close to losing another opportunity to challenge what the plaintiff is doing. I fear you are going to lose not only the defamation suit but the judge will find in favor of the plaintiff on spoliation of evidence.

Please make some calls and sit down with an attorney or two today, for a quick review.

 

[tranquility]

Not really. You need an attorney both for the underlying lawsuit and for the spoliation claim. Your facts are a bit confusing like how you had to use the machine for your work during litigation and how you gave the laptop to daughter previous to litigation. Both of you may be at risk of the tort and each of you have different possible defenses. Of course, all that presupposes the spoliation is negligent and not intentional. While it does not really make a difference for the spoliation claim, it makes a big difference on the sanctions the court might award. That there was a motion and court order for the drive and the information on the drive goes missing, the court is sure to be a bit peeved. You need an attorney desperately.

 

[jonnu]

Thanks each one of you and I will go for an attorney.

Once I gave the machine to my daughter, I am not using that machine anymore. I gave it to my daughter before the lawsuit was filed and that was the last time I used the machine.

 

[quincy]

Thank you.

I just read the article at:
http://www.butlerpappas.com/440
and another article at:

http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/c0d731e03de9828d852574580042ae7a/8261f92eab3e28088525719a00565338!OpenDocument&Highlight=0,*

does it help me in any way?

You can read what tranquility posted earlier on spoliation of evidence (I provided a direct link to the article for your benefit) and you will see how a court can look at the facts presented and how a court can make a decision based on those facts.

If the defamation suit continues to trial, and the judge finds in the plaintiff's favor on spoliation of evidence, the jury will be advised that there is evidence that your computer was tampered with/was altered/had material deleted after you were aware of a suit being filed against you or after you should have been aware a suit was a possibility. The jury can infer from this that your computer contained the defamatory material that would have proved the plaintiff's case against you and the jury can find in the plaintiff's favor on the defamation claim.

As I'mTheFather's link demonstrated, the damages that can be awarded are often very high, even if there is no expectation that the award can ever be collected. You can be ruined financially - and a judgment for defamation is often not something that filing for bankruptcy will solve.

Altering the content on your computer, in other words, appears to have been a big mistake, especially if you did not create the defamatory material that is the subject of the suit. There is a good chance now, depending on what else the plaintiff has to support his suit, that you will find it hard to defend against the action. Your attorney may find it necessary to work with the defamatory material itself to see if you have any defense available there (e.g., "even if jonnu wrote this, it is not defamatory").

Your story in this thread has changed significantly (from your original posts saying you needed the computer for your work and how you worried about your job, to the newest information that your daughter uses the computer for work and you have not had access to it) that only an HONEST and open discussion with an attorney in your area is going to work for you.

There is little that a legal advice forum can do to help you get out of the mess that this defamation lawsuit appears to have become.

I wish you good luck.


Edit to add: I see that you posted as I was composing my post. I am happy you are going to find an attorney in your area. Again, good luck.