We are experienced in prosecuting and defending disputes arising out of business relationships including contractual disputes, unfair competition claims, breach of fiduciary duty, interference with prospective economic advantage, and a variety of other types of business litigation matters. We also handle all types of defamation and trade libel cases.
Jurisdiction; Choice between Federal and State Court
If your business dispute involves an online company based in a different state, a court will first have to determine whether its contacts with your state were sufficient to force the company to defend a lawsuit in your state. If the site regularly contracts with consumers in your state, or tailors itself in any way to users in your state, the court will likely find it has jurisdiction over the defendant and will hear the case. However, if the site merely posts information, the court will not likely find it has jurisdiction to hear the case and you will have to consider other options.
Discovery refers to the compulsory disclosure of information between parties to a lawsuit. Knowledge of discovery laws and effective use of the discovery process are critical to formulating a strong case. Knowing what specifically must be requested, how to overcome tactics to prevent disclosure and how to effectively guard against forced production of your confidential material is often determinative as to whether you will win or lose your case.
In the digital media world, the widespread use of electronically stored information has led to the emergence of e-discovery and widespread efforts to safeguard and control electronically stored data by companies. Texting and social media activity in real time also constitute viable sources of discovery to be pursued in litigation. Site access, emails, photos and videos can now be tracked down by parties in a lawsuit, and new sources of discovery rules are consequently emerging.
We advise clients on issues including pre-litigation safeguard procedures, preservation and production of electronically stored information in litigation and safe online behavior to mitigate potential future pitfalls.
Litigating Against Anonymous Tortfeasors
In the Internet age, a tortfeasor (wrongdoer) is often an anonymous actor or one using an assumed identity (also known as a “pseudonym”). Before you can name such a tortfeasor in a lawsuit, you must determine his or her IP address and subpoena contact information from the applicable internet service provider or other source. You could, for example, demand the user’s identity be revealed by the web hosting company who registered his or her domain, although it may resist providing such information where it promises its users anonymity.
It is typically necessary to file a lawsuit against a “DOE” or unidentified defendant and file a motion for expedited discovery in order to permit one or more subpoenas to be served, which adds significant expense to the pursuit of anonymous tortfeasors. Finally, if you discover the wrongdoer is based in another country, this may make enforcement cost-prohibitive. This is an issue that should be addressed with counsel at the outset, at which point the place of residence of a tortfeasor may not be known.
It is important to also consider that there are laws protecting the right to speak and act anonymously, and depending on the circumstances and/or jurisdiction, it may or may not be possible to determine the identity of a person accused of certain torts, such as Internet defamation.
We counsel clients regarding methods and obstacles to collecting a judgment post-litigation and act zealously to collect from a non-paying defendant. In the online arena, a defendant is often located in another state or country, which may complicate your ability to collect. States will generally enforce one another’s judgments by giving “full faith and credit” to the laws of other states. Sometimes, however, a court may determine that the first court had no jurisdiction over a particular defendant and may refuse to enforce the judgment. It is important to understand under what circumstances a court may find the first court had no jurisdiction over the defendant, and a solid knowledge of applicable law will help you from the outset in weighing the costs and benefits of bringing an action against a defendant located in a different jurisdiction from yours.