Blog Defamation and 1st Amendment Issue

[Blogger2008]

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

I run a blog exposing the abusive treatment of children by dental mills as well as the medicaid fraud that goes on in these places. dentistthemenace.com These clinics only treat children who are on medicaid.

Most dentists won't accept medicaid patients because they say the reimbursement from the state is too low for them to make any profit, yet these dental mills are making millions of dollars. How can it be both ways?

One of these companies put many of their files on an open ftp site. I was sent an email by a third part who did a search about one of their clinics and several documents came up, one important one that exposed the various states they operate in, the various names they use, etc. I then received a phone call from another person who had also found this site. I typed the site name in my address bar and low and behold several documents that one could consider "internal" came up. I downloaded a few of them, many were just advertising budgets and stuff like that. However one, as I mentioned about was very telling. It showed the name of the clinics to use in advertising, the DBA name, then the legal name. It showed in large red lettering when not to mention and what state not to mention the corporate name, since corporate dentistry is illegal in many states. In this large Excel file it even mentioned what name to use as the 'owner' in states that require a "licensed dentist' own said clinics and explicitly mentioned not to mention the name these clinics mainly go under, in some states they change the name as not to be associated with the corporate or main name these clinics go by.

Needless to say I posted a few of these documents, including the ad budget, the corporate contact information as this telling Excel spreadsheet.

Within a week I was served with a complaint siting Trade Secrets, Copyright and defamation from other posts on the blog.

This company filed suit in Federal Court and tried to get an injunction/Temp. Restraining Order, Ex Parte. The judge told them to notify me immediately and set a hearing date that was on a Tuesday. I was served with the notice of the hearing on Friday night about 7 pm.

Over the weekend I was emailed several times kind of being pushed "highly suggest" I take down those documents. I agreed and on Monday before the hearing I signed a Consent Injunction to take down the requested documents.

However I still have the defamation hanging over me and I have to file my Answer by 12/4. I'm going to have to do this Pro Se for sure.

Since I have taken down the documents, would the Federal Court still have jurisdiction?
What motions should I file to try and get this dismissed?
When should I file them?
What all must I include in my Answer if it comes to that?
Can I counter sue for Infringement of my First Amendment Rights: Free Speech, Freedom to Petition (I'm trying to use my blog to get laws changed), Freedom of the Press (I feel after all the months I've spent researching this stuff I've pretty much become a journalist), in fact many other reporters have contacted me for information that I have uncovered.

Would this company be libel proof, it's had investigative reports done on it's practices done by at least 5 different investigative reporters and has even been featured on Good Morning America and another will air Dec. 5 I think on 20/20 that will expose most of what I've been saying. They were even able to do a hidden camera and caught them trying to tell a parent the child needed more work than needed done which would clearly show they are trying to over treat children in order to obtain medicaid dollars.

Is there someone out here to can help direct me as to what I need to file, how it needs to be worded etc.

Thanks for taking your time to read this and I appreciate any advice you can give. I can send you the complaint if you contact me privately.What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?

 

[quincy]

Wow. I think there is more here than can be easily handled on a forum. I suggest you locate a free legal aid clinic in your area, or perhaps a law school, or check out large law firms to see if they do pro bono work, and get assistance in that way. A thorough review of all of the facts will be necessary to give you accurate advice.

I can answer a few questions for you, however.

You will first want to answer the complaint line by line, addressing each item with a "Deny" or "Affirm" or "Neither Affirm nor Deny" or "Do not have enough information to respond." It is vital that you meet all time deadlines. This is where most pro se's run into trouble.

Then you need to file an affirmative defense as well as a Motion to Dismiss.

As for using freedom of speech as a defense, there is no freedom to use another's copyrighted material without permission and there is no freedom to publish a company's trade secrets.

As for publishing material that is in the public interest, as the information you published seems to be, and because the company has already had wide-ranging media coverage, you have a good chance of avoiding any defamation action loss. The truth of the material published can defeat most defamation suits.

I am pressed for time right now, but I will post back when I can with additional "stuff." In the meantime, I really do urge you to seek out an attorney in your area, who can sit down with you and review all that you have going on here. With a December 4 deadline approaching rapidly, the sooner you can locate such help, the better.


Edit to add:
Depending on which dental clinic it is that is suing you for defamation, it is entirely possible that the dental clinic is libel-proof at this point. If the one you are accused of defaming is one that is currently under state and federal investigation for child abuse and medicaid fraud (and extensively investigated by ABC News), then there is very little chance that the dental clinic has a defamation action against you they can win. However, any late filings by you could lead to a court decision in their favor, so that is why I say it is vital to keep track of dates.

In addition, in re-reading your post, you ask about what information you should include in an answer "should it come to that." If you have been served with a complaint, it HAS come to that. You MUST file an answer, or what is said in the complaint is accepted as agreed to by you.

Although I do not see a cross-claim that you can file with any chance of success, you have a limited amount of time in which to file such a claim after being served with the summons and complaint. That is why it is important for you to have an attorney review your situation to see if there is a cross-claim worth filing.

Every defense you have to the complaint should be asserted in your response or answer to the complaint, although certain defenses may be made by motion. These include a lack of jurisdiction over the subject matter or the person, improper venue, insufficiency of process, insufficiency of service of process, failure to state a claim upon which relief can be granted.

 

[Blogger2008]

Yes, quincy, it is the one being investigated by everyone from the DOJ to ABC news (20/20) to air another on the 5th. My answer is due by the 4th.

I was wondering if I could file a motion for an extension to file answer giving the 20/20 thing to air?

Its been difficult to get an meeting with some attorneys to discuss this due to the holidays etc. Can I use that as a reason to ask for an extension?

When I asked what all to include in my Answer, I was asking if after my Answer to each of their charges, do I list my defenses?

I would like to file a motion to dismiss. Could I file a motion to dismiss due to the fact they are libel proof? Or after I agreed to take down the documents they were having a fit about, that the Federal Court no longer has jurisdiction or failure to state a claim that relief can be granted. Since they had those documents out there available to the public for 3 months before I was told about them and I only had them up 7 days before taking them down. No telling the damage, if any they did to themselves.

Can I file a Motion For Summary Judgment, but doesn't that including have to include a lot of briefs etc that I know nothing about.

I'm trying to get to an attorney but I want one that can get the job done and all of them are out for the next week or so... YIKES!

One other thing, isn't it customary to send a Cease and Desist letter or ask for a retraction prior to filing suit?

Your help and advice is being very helpful, thank you so much. If you would like to look at the complaint you can see it at dentistthemenace.com/documents/complaint.pdf

Blogger2008

 

[cyjeff]

Have you invited the 20/20 team to your trial? I would think it would make a nice endpoint to their investigation and might give you some backup.

 

[quincy]

If you are having difficulty finding an attorney over the holidays, you may want to make a trip to a book store or library and pick up some books on how to file or how to defend against a lawsuit, and do some investigating on the internet. The more informed you are, the better - especially if you wind up having to handle much of this on your own (which I definitely do not recommend).

If you fail to respond to the complaint within the time stated, a request can be made by the plaintiff for an entry of default. If the court enters a default, this means that you can no longer appear in the case to defend yourself, and the plaintiff can appear unchallenged, prove his damages, and a judgment can be awarded in his favor. If you default, you would have to file a motion to be relieved of the default prior to the plaintiff's appearance in court. A court can relieve the default if you present a reasonable excuse as to why you did not or could not respond to the complaint in time, BUT it is up to the court's discretion whether to do this or not. A wise defendant NEVER ignores a complaint or defaults. There is too much to risk.

You can file a motion for an extension of time but, again, it is up to the court to decide whether to grant the extension. A motion for extension would take as much effort as filing a timely answer to the complaint - so I recommend you file an answer to the complaint.

Your answer should follow the form of the complaint, denying any fact asserted in the complaint with which you disagree, affirming those facts asserted in the complaint with which you agree, and if you do not understand the facts asserted you can answer with a "neither affirm nor deny" (your answer can be printed using a standard form provided by the court or you can go online - check to your right here, for instance - for forms to print off). I advise you to look online for sample complaints and answers, to see how they are filled in and worded. This will help you complete your own.

Any allegations made in the complaint that are not denied will be deemed "admitted" by you - the court will consider, in other words, that the allegation made in the complaint is true. Admitting to certain facts can be used against you in court, so make sure you know what you are admitting to and/or denying as true.

In addition to this answer to the complaint, you should state your defenses and affirmative defenses, and potentially assert cross-claims. Affirmative defenses are various arguments you make to counter the allegations made in the complaint. Basically you are stating that you are not legally liable and stating the reasons why. Your defenses to defamation can potentially include that what you published was true (truth is a defense), that what you published was your opinion (opinion is a defense), that what you published was fair comment and criticism of a matter of public interest and controversy (fair comment and criticism is a defense).

You may also file other motions at this time - although certainly making sure your answer to the complaint is filed and served on the plaintiff in time is the most vital. You can move to quash service (if you were served the summons and complaint in an improper manner) or you can file a demur to the complaint (arguing that it is poorly worded or the legal reasoning is flawed), or you can move to strike some of the allegations in the complaint (if they are not legally permissible).

A motion for summary judgment is generally not filed until discovery, when all evidence is reviewed, witness lists presented, depositions taken, documents produced. . . it becomes clearer then whether the plaintiff has any case at all he can win against you. Your motion for summary judgment will argue that there is no triable issue of fact. And hopefully this is where it all ends for you.

As for the cease-and-desist letter - this is not necessary. Many who are suing will jump right to a lawsuit without any cease-and-desist warning. And while a retraction helps to mitigate harm caused and, therefore, any damages that may be awarded, many defendants will publish a retraction or remove offending material but this is not always requested by the plaintiff.

Very very few people or places are libel-proof. It would be important for a defamation attorney to review the material you are being sued over, to determine if that is a possible defense for you to use or not.


A book that may help you do this on your own, until you can locate an attorney, is Represent Yourself in Court: How to Prepare & Try a Winning Case, by Paul Bergman and Sara J. Berman-Barnett (Nolo) and call the Kentucky Bar Association for direction on finding a lawyer. And contacting the media on this may not be a bad idea.

 

[Blogger2008]

I think I'm getting the picture and have found some forms that will help lead me in my answer. I will be sure to file it on time, with the right to amend when I get an attorney.

As for their copyright claims and trade secrets claim, I just found out that long before I published those documents, the producer at 20/20 had already found them and sent a couple of the docs to them for comment. When he talked to them via phone and told them they were readily available for download and unprotected with any passwords etc they said "yeah, we know"

In their suit against me they say I had been the only person on their, this shows they knew that wasn't true.

This probably doesn't mean much but I sure was excited to hear this.

 

[quincy]

Regarding the trade secret claims and the copyright infringement claim, the fact that this material is easily available makes a difference in any trade secret suit filed against you, but has no effect on any copyright infringement suit. With copyright infringement, a lot of copyrighted material is readily available - but it is still illegal to copy it or publish it without permission from the copyright holder.

The fact that 20/20 had access to the material really does not make much of a difference in your case - except, again, as it applies to the trade secrets claim. If trade secrets are not protected and are easily available for public viewing, they are no longer secret. Proof of the publication of the company's trade secrets by the company, whether done intentionally or unintentionally, can effectively eliminate any cause of action against you for your role in publishing the trade secrets on your website.

As an additional note, 20/20 has the benefit of a large legal team and lots and lots of money, which a single individual cannot hope to match in any legal battle. News organizations have the ability to keep an action going in court for years and years, and they often do just that. An individual, on the other hand, could become bankrupt quickly in any defamation or infringement action, and that is what a plaintiff hopes a defendant realizes, as the threatened cost of litigation can lead to a faster settlement for the plaintiff. The defendant is often more willing to settle an action than to spend thousands and thousands on defending any claims against them, with the risk of losing the suit (and the $$$ spent). The threat of a costly and lengthy legal action, therefore, often intimidates the small time defendant.

I am glad you have located forms you can use for your answer to the complaint. As long as you have the basics filed on time, and your affirmative defenses outlined, you should be good to go.

 

[Blogger2008]

I was glad they producers of 20/20 had submitted one of the documents in question to the Plaintiff long before I reproduced them on my site, at least that kinda showed they had them before me since they are saying I'm the only person besides google's crawler who had ever been to the site where they had stored the docs.

Well, these people move fast! I have until Dec. 4 to file my answer, which I have ready by the way, and today I get a set of Interrogatories.

Here are just a few of the questions:
1. Identify every person known to you, your attorney and/or agent of you who is believed to have knowledge of the subject matter, facts relevant to this proceeding.

Well that is anyone who has every seen all the news stories over the last year! I can't answer that question.

2. Identify by time and date and all parties with whom you have had communication with and for each communication state the substance of the communication in detail.

Well, half the people I wouldn't even know. Nor have any way of knowing since they can post comments under any names, email me in any names etc.

3. Identify all websites and email address you have created, controlled, owned or used at any time in the past or present!

My goodness, I've been on the internet since Prodigy started. No way I could remember or know all of that.

4. Identify by make and model all computers from which you have used, sent or received emails from over the past 5 years!!

Again impossible to answer that, I've had several and used loads.

5. They want me to turn over my computer to them for inspection.

6. They want all emails I've received and sent over the last 11 months.

This is just a sample of silly stuff.

Got any suggestions? Should I go ahead and answer these questions before I file my answer or wait?

Thanks, for all your guys help

 

[quincy]

You need to file your answer to the complaint first. The interrogatory can wait - the answer to your complaint cannot. You still need to file your answer and have it served on the plaintiff/plaintiff's attorney. This, as I said before, is vital.

Your answer to the complaint (you said you have completed this?) should be worded something like this: "1. Defendant (denies, admits, is without sufficient knowledge to form a belief as to the truth of the alleged statement) the allegation stated in paragraph one of the complaint, and 2. Defendant (denies, admits, is without sufficient knowledge to form a belief as to the truth of the alleged statement) the allegation stated in paragraph two of the complaint, and 3. et cetera and so on, as to paragraph three of the complaint. Your answers should go line by line through the complaint, numbering the answers to correspond to the allegations in the complaint. You can also deny in part, affirm in part, or qualify any denial or affirmative response.

Then you need to draft a separate document with your defenses to each and every allegation contained in the complaint. These defenses should be stated in short, plain terms. You do not need to use technical language as it is not required. You can present one or more defenses to each claim made.

You can motion to have anything striken (or the court can order anything striken) that is redundant, immaterial, impertinent, irrelevant.

Everything you submit should be captioned - with the name of the parties, the name of the court, the title of the action, the file number. Again, check out how these are done by reviewing online sample complaints and answers.

As for the interrogatories (which includes, apparently in your case, a request for the production of documents), answer each question to the best of your knowledge. Leave out any information requested that has no relevance to the lawsuit. You cannot willfully refuse to comply with the plaintiff's request for production of documents or request for information, however you can object to the question or the production of documents as part of your answer.

Parties to a lawsuit can obtain discovery on any matter that is not privileged and that is relevant to the claim or defense of any party to the suit. This includes the discovery on the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things, and the identification and location of any persons having knowledge of any discovery matter.

However, for question number 5 in your interrogatory, you do not have to turn over your computer for their inspection, as it goes beyond the scope of the lawsuit. They would need a warrant to get your computer. You can object on the grounds that turning over your computer goes beyond the scope of discovery.

Requiring all emails that you have received or have sent over the last 11 months, again, goes beyond the scope of the lawsuit. You do not have to turn over those emails that have no relevance to the suit, and you can object to the request on these grounds.

In fact, most of the questions in this interrogatory are overly broad. You can object to the requests and to the questions on the grounds of irrelevance, as well as being unreasonable and an undue burden and cost.

The objections to the interrogatory and/or discovery requests can be that the discovery materials sought are unreasonably cumulative or duplicative, or are obtainable from some other source that is more convenient, less burdensome or less expensive. You can state that the burden or expense of producing the documents requested outweighs any likely benefit.

The plaintiff here is asking for the production of documents, which they are allowed to do. But you do not have to produce anything that has no relevance to the lawsuit. You must answer the questions posed, but you may answer with your objections to the question and why you object.

Again, I strongly suggest you sit down with an attorney (this is a case that may very well be of interest to a large law firm dealing with pro bono cases), to assist you with the drafting and filing of these.

You can also start preparing an interrrogatory of your own. It may also be wise (check with an attorney on this) to file a motion for summary judgment at the outset - or perhaps a selective judgment on the defamation and trade secrets claims against you (although any such motion is likely to be denied at this stage).

The only legal action that I see here that has a chance of success for the plaintiff is the copyright infringement action. There is, at least as I see it from what you have posted and without knowing all of the facts involved, no legally sufficient basis for a defamation or trade secrets action against you.

When you handle court actions pro se, you are expected to know all of the laws and procedures involved, even though most pro se's don't. The court will not make allowances for pro se's who miss filing dates, file forms wrong, etc. That is why it is recommended you have an attorney. And I will continue to recommend that. Check all sources for legal help - the State Bar, law clinics, law schools, law firms which do pro bono work.