Online Business Reputation and Defamation Cases: Part 2 Overview of Evidence and Pre-Trial Motion

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Business Litigation Attorney

In Part 1 of our series, we learned about a dispute between a business and the landlord for their commercial lease. After a dispute began to dissolve the relationship, the defendant was believed to have posted negative reviews of the business on the website Yelp. In Part 2 we will learn a bit more on how those Yelp reviews effect the case.

Before the Yelp postings emerged, the plaintiffs had a claim for breach of contract, but once they discovered the libelous postings, they amended their complaint to also include defamation of business character and reputation.  The Yelp postings were of particular focus of the court, so it is important to include a detailed account of what it entailed.

On June 1, 2011, one Yelp user stated that Artisan provided the worst service he has ever experienced.  He described in detail the stains on his carpet that appeared after he left them with Artisan and the unjustified price increase.  Another review appeared the next day and stated that there was an angry lady that worked at Artisan.  A third review appeared the same day by another user which states that Artisan’s service was unfriendly and the carpet was made worse by Artisan’s attempted repair.

In order to discover the identity of the person or persons responsible for these defamatory reviews, the Plaintiffs subpoenaed Yelp! Inc. for records which included the email addresses and IP addresses associated with the three reviews.  An IP address (Internet Protocol Address) is a unique identifier which is sort of like a Social Security Number for any entity that is connected to the Internet at any given time.  Essentially, the location of the IP address would have significant implications on who was using the account.  The plaintiffs also subpoenaed the customer account details for the subscriber information that were connected to the IP addresses at the time of the Yelp posts.  For all of the accounts, the subscriber was the defendant in the case.  The service address for one account was the defendant’s home address and the two others were the defendant’s business office address.

There were two legal focuses to this post: (1) the importance of available e-discovery methods that can be a determinative factor in winning and losing a case and (2) what is known as “pretrial discovery on defendant’s financial condition.”

This case combines both of these concepts.  Pretrial discovery on defendant’s financial condition will be ordered if the plaintiff has established that there is a great likelihood of prevailing on the claim.  In this case, the court granted this motion because although the defendant claimed that the coinciding locations of the IP addresses do not conclusively prove it was him who posted the reviews, it is “highly likely” that the defendant was responsible for the reviews – that it was not just a coincidence.  Later, at trial, the Plaintiffs were ordered by the court to have an e-discovery expert testify.  This will be the focus of the next part of the series.  Overall, had it not been for the sort of e-discovery discussed above, the plaintiffs would have had almost no case whatsoever.

To discuss your NJ Business Litigation matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.

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