Court Erred In Not Allowing Discovery On Internet Posting

A law firm that believes it was defamed has the right in discovery to find out if the defendants have any knowledge about the internet posting.

The Seventh Circuit found that the district court erred in not ruling on a request to compel the defendants to disclose if they had any information in their possession about the source of the posting and the names of the persons with such knowledge. However, the appellate court did find that the trial court was correct in excluding an expert’s opinion that the posting came from the defendants’ IP address.

The case concerns a posting on www.teamster.net that correctly stated that one of the attorneys with the law firm was arrested in his home for domestic battery. The post also stated, “Don’t make the same mistake me and my husband did-it’s a waste of time and money.” The firm of Wendler and Ezra contended that the sentence implies that the writer is an unhappy client of the law firm but that the message came not from a client but from an adversary, American International Group (AIG), and is an attempt to steer potential clients away.

The district court granted summary judgment for defendants because the law firm could not establish the posting’s origin. The firm attempted to use an affidavit from an expert witness who said he traced the post to AIG’s IP address. “The affidavit did not state, however, what software had been employed, how it worked, what data had been provided to the program, and what if anything had been done to find out whether the poster had spoofed one of AIG’s addresses,” the court wrote.

The appellate court said that because the expert only provided the “bottom line” conclusion that the post came from the IP address and did not explain the methods used to reach his conclusion, his affidavit did not provide anything of value to the court. Thus, the trial court was correct in excluding the affidavit.

However, the appellate court sent the case back to the trial court because the trial court did not rule on the law firm’s motion to compel AIG to answer discovery that asked if it had any information as to the posting. “If the motion to compel is denied, or if it is granted but AIG has no useful information to supply, then Wendler and Ezra loses the case. But if information in AIG’s possession implies that the posting came from AIG’s internet address, then it becomes necessary to pin down who sent it, under what circumstances, and whether AIG is responsible.”

Wendler and Ezra, P.C. v. American International Group, Inc., Seventh Cir. No. 07-1860, filed April 9, 2008.