As outlined in my previous article on business defamation, The Proper Response To Social Media and Business Defamation, there are some preliminary steps you should take if you believe your business has fallen victim to a defamatory online statement. If, after taking those actions, you still believe your only recourse is to file suit, then you need to take steps to preserve any evidence of the defamation.
It is important to recognize that your social media and other webpages may overwrite posts including the defamatory comments and any responses to those comments. Therefore as a critical first step, screenshot any messages you believe are important, ideally with a reference to the date and time of the post included in the shot. Phones and tablets, generally, do not overwrite photos.
Second, you should immediately stop deleting any data or disposing of any documents. It is very easy to say do not destroy evidence, but actually implementing a plan to preserve the evidence is far more difficult than it may initially seem. Years ago, an evidence preservation plan was as simple as telling people don’t throw anything away. Now with the ubiquity of electronic devices and data, compounded by the number of employees, preservation has become far more difficult. Depending on the potential dollar value of your potential lawsuit, it may be advisable to have a mirror copy of all of your data made by a professional data forensics firm. Engaging a data forensics firm can get expensive quickly, but it is a prudent step to ensure that data is preserved.
If any evidence is altered or destroyed a court can issue sanctions. As with so many political investigations it is often the cover up and not the crime that lands someone in trouble. Unexplained and intentional destruction of evidence gives rise to an inference that the evidence would have been unfavorable to their cause. Even if there is no evidence of fraudulent intent a Court could enter an adverse presumption against you if data is missing.
The bottom line is if you believe you will need to engage in a legal battle in response to a defamatory statement, you must do everything you can to make sure that your evidence is preserved. It is also highly recommended that you contact an attorney experienced in handling business defamation matters to assist with evaluating the potential value of your case, likelihood of success and specific evidence needed to prevail.
Aidan Smith is an AV rated trial attorney who has represented individuals and businesses of all sizes in state and federal courts and before arbitration panels throughout the State of Maryland. He practices in the areas of commercial litigation, real estate litigation, general civil litigation, criminal defense and family law. He can be reached at 410-339-6764 or asmith@pklaw.com.
