Arguments to defend

[quincy]

My error but I see little substantive difference whether there be an order to preserve or a duty to preserve based on a request for discovery other than it is not a violation of a courts order and as such, risks the penalties for doing so. So he skates on the violation of a court order.

a good article on the matter:

http://www.slk-law.com/portalresource/lookup/wosid/cp-base-4-15502/media.name=/DAC.Docket%20Article%20E-Discovery%20Rules.pdf




of course any time there is more than a buck ninety five involved one should at least consult with an attorney if not actually engaging one to represent them.

I am going to provide a link to the Florida Bar Opinion, but I have not been real successful in getting working links to anything Florida Bar.

http://www.floridabar.org/DIVEXE/RR...7DD9006E5816/$FILE/14-01 PAO.pdf?OpenElement=

Here is a link to an e-discovery Law Alert on the Opinion, though, and this link may work:
http://www.ediscoverylawalert.com/2...e-removal-of-social-media-posts-and-pictures/

With all of this posted, though, I want to emphasize to dodo3 that any information provided here should not be used to help in self-representation - as it seems clear a Florida attorney is necessary to assist in the case. A forum cannot replace, and should not be used to replace, a personal review of the facts by an attorney in dodo3's area.

 

[justalayman]

but each of those deal with pre-litigation concerns. In the situation at hand, although not totally clear, I believe litigation had begun at the time of the plaintiffs request for preservation.

But even more to the point: OP admits to altering data after receiving not only the request to preserve but after the receipt of discovery request. How is there any question he has violated his duty to preserve evidence?

On January 23, 2015, the Professional Ethics Committee of the Florida Bar issued an advisory opinion holding that before litigation commences, and absent any other preservation obligation, an attorney may advise a client to:

A Florida Bar member has asked the committee regarding the ethical obligations on
5 advising clients to “clean up” their social media pages before litigation is filed to remove
6 embarrassing information that the lawyer believes is not material to the litigation matter. The
7 inquirer asks the following 4 questions:

and again, I agree completely OP should consult with an attorney.


but I do wonder: has the issue of spoliation even come before the court?

The great concern with a defense to spoliation along with this:

he lawsuit is filed accusing me of posting some comments over the internet. However, plaintiff never produced any posting (not even a single posting) linking my home IP address to the alleged postings, despite my discovery requests to produce any postings that are published from my home IP address. Therefore, my home is ruled out as a potential launching spot for those postings. In addition, I have proofs that some of those comments were posted from outside of Florida and some of them were from outside of USA (my job records and my passport prove that I have never been to outside of Florida or USA during those dates/times).

again, a huge concern not with proof he didn't do something but a distraction (and mostly an invalid one) showing it was somebody else and no real concern with the meat of the matter.


color me jaded but I think something in Denmark smells less than desirable.

 

[dodo3]

Once more, thanks so much for the valuable feedback.

Originally, I wrote as follows:

“Plaintiff wrote a letter to me to preserve the information in those devices. Later on, Court ordered me to submit those two computers for forensic imaging and I did (court did not ask me to preserve any information).”

There is a minor correction to this:

“Plaintiff wrote a letter to me to preserve the information in those devices but I replied saying that I will provide MAC and IP addresses only; and if any forensic exam is needed, it should be done through a court order. Then the plaintiff filed a motion in the court for a forensic ex and it was approved. Court did not ask me to preserve any information. As far as I can recall, we have not erased any information after the court order (only a forensic exam can determine it). Almost at the same time of the court order, I received an inspection request from the plaintiff”

The plaintiff’s argument is: there are visits to plaintiff’s website (any one can visit that website from any anywhere) from my home IP address therefore, plaintiff is suspecting me of making posting against him (in other blogs and websites) after visiting and reading his information from his website (again, no postings from my home IP address were produced AND no evidences were produced to prove that our MAC addresses (computers) were connected to the places from where the postings were made)

Based on your feedback, it appears that my best defense is with the first question: whether the evidence ever existed (in our laptops). Without PROVING it, the plaintiff cannot proceed further. Please provide your opinion.

I am contacting an attorney and hopefully it will be finalized next week. However, in the mean time, I request your valuable feedbacks (I clearly understood that your feedbacks are just opinions and they are not substitutes to an attorney).

 

[quincy]

... Then the plaintiff filed a motion in the court for a forensic ex and it was approved. ...

... Based on your feedback, it appears that my best defense is with the first question: whether the evidence ever existed (in our laptops). Without PROVING it, the plaintiff cannot proceed further. Please provide your opinion. ...

... I am contacting an attorney and hopefully it will be finalized next week. However, in the mean time, I request your valuable feedbacks (I clearly understood that your feedbacks are just opinions and they are not substitutes to an attorney).

Generally a court will not approve a motion for a computer forensic examination unless the party requesting the examination has provided the court with good support for the motion.

The plaintiff can proceed with a case against you even without evidence taken directly from your computers. When an action centers on internet postings, however, what is found on the defendant's computer no doubt plays a significant role.

I suspect there could be more evidence against you than you might think but, whatever the case, I can only make guesses at why the court approved the forensic examinations - and guesses will not help you. The plaintiff named you in the suit for some reason. "Why?" is the question your attorney will ask.

It is good that you will be speaking with an attorney this week. The attorney will have access to the information from both you and from the other party and, after the personal review, can offer you guidance and advise you accordingly.

Good luck, dodo3.

 

[dodo3]

One more time, thanks so much for the valuable feedback, Quincy.

I want to use the third question as well: whether the evidence was critical to the opposing party providing its affirmative claim or a defense.

Plaintiff did not produce any evidence linking the postings with the my personal laptops. If my laptops are crucial, plaintiff would have mentioned about them in the lawsuit. However, in the entire lawsuit, there is no reference to the laptops (if this evidence is related to an X-ray in a doctor office, I am sure there are 100 times, this X-ray will be mentioned in the lawsuit). Plaintiff came to know about these laptops by requesting information from me. Once he knew about their existence, he started asking to preserve the information. Therefore, these laptops are just an opportunistic evidence but not a crucial evidence. Hypothetically, if I posted those messages then Plaintiff still needs to prove that I used my personal laptops over there, in order to give these laptops a crucial status but plaintiff failed . Therefore, the crucial evidence is: my travel or cell phone and other GPS records to prove that I was there, any video footage over those places, any testimony from people working in those places, and any login and forensic in the computers available in those places. Plaintiff already has my MAC addresses but failed to link them to those places.

Plaintiff only claim is that there were visits to his personal website (open to anyone) from my home IP before some these postings on other websites/bogs. However, I had business relationship with him in the past therefore, probably I would have visited his personal website and it is not unusual (he has business relationships with 100s of people). Visiting a website is different from posting comments on a website/blog.
When the court approved the forensic examinations, I had an attorney but she simply agreed with plaintiff’s motion, without my approval. I fired her and started representing myself since then.

 

[justalayman]

You do realize that those "three questions" only apply to a claim or charge of spoliation of evidence, right? It wil not affect the use of any evidence found, right? It also will not affect how the court views your actions in weighing your veracity either should it appear you did take action to hide evidence.


And of course those "three questions" apply to actions prior to the initiation of litigation.

You sure seem to put a lot of weight on what is or was on your computers for somebody claiming innocence.

 

[quincy]

I want to use the third question as well: whether the evidence was critical to the opposing party providing its affirmative claim or a defense ...

You should try to find an attorney in your area who is well-versed in actions that center on internet postings. The plaintiff in your case apparently feels he can support his claims. I don't know with what he hopes to support them. The attorney you see can determine this better after a personal review.

Good luck, dodo3.

 

[dodo3]

Once again, thanks for your information to both, and I appreciate.


justalayman: t seems you are not correct (sorry, if I am wrong) but this what it say

Now, before a Florida court issues any sanction for spoliation of evidence, it needs to answer three
fundamental questions: (1) whether the evidence ever existed, (2) whether there was a duty to
preserve that evidence, and (3) whether the evidence was critical to the opposing party providing
its affirmative claim or a defense. Golden Yachts, 920 So.2d at 781.

 

[quincy]

Once again, thanks for your information to both, and I appreciate.


justalayman: t seems you are not correct (sorry, if I am wrong) but this what it say

Now, before a Florida court issues any sanction for spoliation of evidence, it needs to answer three
fundamental questions: (1) whether the evidence ever existed, (2) whether there was a duty to
preserve that evidence, and (3) whether the evidence was critical to the opposing party providing
its affirmative claim or a defense. Golden Yachts, 920 So.2d at 781.

The plaintiff in your case apparently has evidence against you that led to his filing of the legal action. The plaintiff had this before his discovery request and before his motion to the court for the computer examination. It appears there is evidence enough against you to support the plaintiff's motion (or there was no objection to the motion) because the court granted the motion and ordered the forensic examination.

In other words, the plaintiff probably has SOMETHING to support his legal action against you even without taking anything directly from your computer.

The attorney you see will be able to determine better what this something is.

If the plaintiff can link in any way you and/or your computer(s) to the date and the time of the postings, that can be enough for his legal action. The absence of these postings on your computer NOW can be used in a spoliation claim, if the forensic examination shows that material was deleted from your computer AFTER you received the notice to preserve the contents on your computer. It can be inferred that you deleted incriminating material. As I said early on, computer evidence may or may not be seen as vital to a claim but it certainly can help the plaintiff.

No one on this forum has access to the plaintiff's evidence against you - or any idea really of what the civil action is all about. But the legal action was filed for some reason. People tend not to wake up one morning and decide to pursue a legal action against some random person on the internet.

That is why it has been said in every post to you that you need to see an attorney in your area for a personal review. The attorney can guide you in a way that makes sense for your case and for your defense to it after personally reviewing all of the facts - what led to the suit and what it is that supports it.

Spoliation of evidence appears to be only one factor in your case, and it only serves to complicate your defense. It is not the only factor you need to concentrate on at this point nor is it likely to be the most important factor to concentrate on at this point.

Good luck, dodo3.

 

[I'mTheFather]

Once again, thanks for your information to both, and I appreciate.


justalayman: t seems you are not correct (sorry, if I am wrong) but this what it say

Now, before a Florida court issues any sanction for spoliation of evidence, it needs to answer three
fundamental questions: (1) whether the evidence ever existed, (2) whether there was a duty to
preserve that evidence, and (3) whether the evidence was critical to the opposing party providing
its affirmative claim or a defense. Golden Yachts, 920 So.2d at 781.

Your focus on those 3 questions is grossly misguided. You ought to read the footnote cases in the Bar article for more clarification of how those questions are answered by the court.

And you ought to have a lawyer. I'm pretty sure you won't retain another one though. I suspect the one you had was doing what she could to mitigate the damage you've already caused yourself.

Am I the only one who believes this poster has had an ongoing lawsuit for at least a year (maybe 2) and has posted under at least 6 usernames?

 

[justalayman]

I just read a neat way Florida has treated spoliation Claims in some circumstances. An adverse inference instruction to the jury where they are instructed to presume there was incriminating evidence that was destroyed. I'm also reading of default judgments being awarded based on spoliation.

As
Quincy has been saying; the guy didn't get as far as he did without some evidence other than what is or was contained on the computers. Given what I have been reading you really need to hope he has absolutely nothing that points to anything being on your computers. I think you really need to re-read the first question as well. Evidence it did exist does not mean they have to find something on your computer. In fact if the plaintiff can link your computers with his website EVER (even when not posting the statements behind the suit) the lack of proof on your computer that you has visited his site is evidence there was information deleted. That wouldn't bode well for you.

 

[quincy]

Your focus on those 3 questions is grossly misguided. You ought to read the footnote cases in the Bar article for more clarification of how those questions are answered by the court.

And you ought to have a lawyer. I'm pretty sure you won't retain another one though. I suspect the one you had was doing what she could to mitigate the damage you've already caused yourself.

Am I the only one who believes this poster has had an ongoing lawsuit for at least a year (maybe 2) and has posted under at least 6 usernames?

It would not be unusual for an attorney to get frustrated with a client, especially a client who might want to control the direction of a legal action.

A client who informs his attorney of all that the client has learned online could potentially be helpful to an attorney - but I am thinking that usually it is not.

If this is a defamation claim filed against dodo3 (and some of what has been posted DOES seem oddly familiar), it would be a big mistake for dodo3 to try to handle it himself.

dodo3, a personal review of the facts by an experienced attorney appears as necessary now as it did when Zigner first advised it in Post #2. While it is fine and often smart to educate yourself on the laws that apply to a legal action you are involved in, hiring an experienced attorney to handle your case is far far better.

 

[dodo3]

Once more, thanks to all.


I am confused with what I'mTheFather said: “our focus on those 3 questions is grossly misguided. You ought to read the footnote cases in the Bar article for more clarification of how those questions are answered by the court.” Could you tell how it is misguided and any reference to those foot note cases?

In light of the above claim of I'mTheFather, what is the status of Quincy’s earlier opinion:
“Spoliation of evidence appears to be only one factor in your case, and it only serves to complicate your defense. It is not the only factor you need to concentrate on at this point nor is it likely to be the most important factor to concentrate on at this point.” Will it still stand good in my case?

I did not post to this form before.

 

[justalayman]

that's up to a court to determine.


Beyond that, you have not given any true information from which an opinion could be formed.

 

[quincy]

Once more, thanks to all.


I am confused with what I'mTheFather said: �our focus on those 3 questions is grossly misguided. You ought to read the footnote cases in the Bar article for more clarification of how those questions are answered by the court.� Could you tell how it is misguided and any reference to those foot note cases?

In light of the above claim of I'mTheFather, what is the status of Quincy�s earlier opinion:
�Spoliation of evidence appears to be only one factor in your case, and it only serves to complicate your defense. It is not the only factor you need to concentrate on at this point nor is it likely to be the most important factor to concentrate on at this point.� Will it still stand good in my case?

I did not post to this form before.

You are not being sued for spoliation of evidence. You are being sued for posting something that the plaintiff took exception to.

Although you can read through the information in the links provided to you in this thread, please don't get confused or distracted by it. Spoliation is not the basis of the suit filed against you even though the cleaning of the computers after a preservation request can work against you in the suit.

You need an attorney in your area, dodo3, so that you can fashion a defense to the suit and so that the attorney can iron out the latest spoliation-wrinkle in it.

Good luck.