Whitney Information, et al v. Xcentric Ventures, et al

Filing 168

MOTION to supplement Admit Newly Discovered Evidence in Support of Defendants' Motion for Summary Judgment by Xcentric Ventures, LLC, Badbusinessbureau.org, Ed Magedson. (Attachments: # 1 Exhibit Exh A, # 2 Exhibit Exh B)(Speth, Maria)

Maria Crimi Speth, #012574 (Admitted Pro Hac Vice)
JABURG & WILK, P.C.
3200 North Central Avenue, Suite 2000
Phoenix, Arizona 85012
[phone]
Attorneys for Defendants

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA

WHITNEY INFORMATION NETWORK,
INC.; a Colorado corporation,
Plaintiffs,
v.
XCENTRIC VENTURES, LLC, an
Arizona limited liability company;
BADBUSINESSBUREAU.ORG, an
Arizona limited liability company; and ED
MAGEDSON, an individual,

Case No: 2:04-CV-47-ftm-29
MOTION TO ADMIT NEWLY
DISCOVERED EVIDENCE IN
SUPPORT OF DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT

Defendants.

Xcentric Ventures, LLC, (“Xcentric”), and Ed Magedson (“Magedson”)
(collectively, the “Defendants”) respectfully move to submit new evidence that Plaintiff
Whitney Information Network, Inc. (“Whitney”) has admitted in deposition testimony
that Whitney has no evidence that Defendants authored or provided the content for any
defamatory statements at issue in this case. Pursuant to 47 U.S.C. § 230(c)(1), Defendants
cannot be liable as publishers for defamation posted on the interactive computer service
by third parties, and if Plaintiff has no evidence that Defendants authored the defamatory
content at issue in this case, the Court must grant the Motion for Summary Judgment.
On January 21, 2008, deposition transcripts became available for the depositions
of Ronald Steven Simon, Whitney’s COO and Co-President, and Russell E. Whitney,
Whitney’s founder and Chairman of the Board.
10297-8/ASK/ASK/633298_v1

Whitney designated Mr. Simon as the corporate representative to speak on the
topic of who authored the statements at issue in this lawsuit that Whitney claims to be
false and defamatory. (Exhibit A, Simon Transcript, p. 92 l. 11 through p. 93 l. 8)
Defendant’s Rule 30(b)(6) Deposition Notice specifically requested:
The person with the most knowledge regarding:
1.
The exact statements that Whitney Information Network, Inc.
(“WIN”) claims (in this lawsuit) to be false and defamatory;
2.
Who authored statements at issue in this lawsuit that Whitney
Information Network, Inc. (“WIN”) claims to be false and defamatory;
3.
The alleged changes made to consumer complaints/reports
about WIN posted on the www.ripoffreports.com webpage.
4.
What evidence is in WIN’s possession to support WIN’s
claims about the authorship of alleged false and defamatory statements at
issue in this lawsuit, or to support the allegations about changes made to
consumer
complaints/reports
about
WIN
posted
on
the
www.ripoffreports.com webpage.
5.
What testimony will WIN use to support its claims about the
authorship of alleged false and defamatory statements at issue in this
lawsuit, or to support the allegations about changes made to consumer
complaints/reports about WIN posted on the www.ripoffreports.com
webpage.

The evidence this motion seeks to introduce has not previously been available to
Defendants because depositions of Whitney’s 30(b)(6) witness or Mr. Whitney could not
be scheduled until December 3, 2007, and the transcripts of those depositions were not
provided until January 21, 2008. Defendant’s Motion for Summary Judgment was filed
6/21/07. Plaintiff’s response was filed 9/10/07. Defendant petitioned the Court for
permission to reply on 9/14/07. The Court has not ruled on either the Motion for
Summary Judgment or the request to file a Reply. Defendant provided supplemental
authority on 1/18/08, and now files this Motion to supplement the evidence.
Mr. Simon testified that Whitney had no evidence that any defendant authored or
provided content to any alleged defamatory statement at issue in this case. For example:
54
2
10297-8/ASK/ASK/633298_v1

2 Q Okay. Would it be fair to say that the
3 report that was filed on June 14th, 2003 that purports
4 to be authored by Leilani, that as to that report you
5 have no reason to believe that anyone from XCentric
6 Ventures authored that particular report?
7
MS. STERN: Object to form.
8
THE WITNESS: I have no idea.
...
16
17
18
19
20
21
22
23
24
25
1

54
Q So let me put it this way, do you have any
evidence or any reason to believe that my client
authored this particular report that we've been
talking about?
A I have no reason to believe that they
authored it, and I have no reason to believe that they
didn't assist in it.
Q Fair. I understand your position. You just
don't know either way on this particular report,
correct?
55

A Correct.

(Simon Transcript, p.54 ll. 2 through 8, p. 54 l. 16 through p. 55 l.1)
Mr. Simon further testified that he had no evidence that the person making that
particular complaint about Whitney on Defendant’s website was coached by Defendant,
or that she didn’t independently choose to file her complaint under the category “corrupt
companies,” stating “No, it’s just a feeling.” (Simon Transcript, p. 58 ll. 2 through 9)
Mr. Simon admitted several times that he did not know whether or not Defendants choose
categories or provided any content to the alleged defamatory statements. (See, e.g. Simon
Transcript, p. 72. l. 24 through p. 73 l. 4; p. 76 ll. 2 through 4; p. 77. ll. 7 through 14).
Mr. Simon testified that he had no evidence to indicate that Defendants authored
any of the allegedly defamatory statements. During the deposition, to indicate what
statements were alleged to be defamatory, Mr. Simon highlighted printouts of statements
about Whitney from the Defendant’s web page. This was labeled Exhibit 3 to the
deposition. He testified that he had no evidence to indicate that Defendants authored any
of the highlighted statements.

3
10297-8/ASK/ASK/633298_v1

15
16
17
18
19
20
21
22
23
24
25

89
Q Now, the statements that you highlighted in
Exhibit 3 as false, is it your position that my client
authored some or all of those statements?
MS. STERN: Objection to form.
THE WITNESS: At this point I have no
knowledge one way or another.
BY MS. SPETH:
Q Do you have any reason to believe that my
client authored any of the statements that are
contained in Exhibit 3 that you have identified as
false?

1

A Just a personal opinion.

90

(Simon Transcript, p. 89 l. 15 through p. 90 l. 1) Mr. Simon believed someone told him
that Defendants had authored the reports, but could not remember any source for the
information, except that he remembered that he did not get that information from
Defendants.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

91
Q What evidence do you have that my client
authored any of these statements?
A At this point I don't have any evidence other
than what I surmise or what I've been -- what people
have told me.
Q When you say what people have told you -- I
don't want to ask you about your conversations with
your attorneys, but other than your attorneys who has
told you my client has authored these statements, if
anyone?
A I don't recall at this point.
Q Do you think that someone has told you that
my client authored these statements other than your
attorneys?
A It's possible.
Q And do you think that person was someone who
had any personal knowledge? Let me do it this way,
has either Ed Magedson or anyone who works for
XCentric Ventures ever told you that an employee or an
agent of XCentric Ventures authored these statements?
A I have not spoken to him.
Q So if it's possible that somebody has told
you this, is it possible that the somebody who told
you this is somebody who had personal knowledge of who

92
1 authored the statements?
2
A Anything is possible at this point.
3
Q I know, but what is it you are remembering
4 when you say what people told you?
4
10297-8/ASK/ASK/633298_v1

5
A I don't know. At this point I don't have a
6 clear recollection.
7
Q Okay. But are you reasonably certain that no
8 one who works for XCentric Ventures or Mr. Magedson
9 ever told you that they authored the statements?
10
A At this point, yes.

(Simon Transcript, p. 91 l. 2 through p. 921 l. 10.)
Likewise, Mr. Simon had no evidence that any Defendants made any changes to
any allegedly defamatory statements posted by Whitney’s customers on Defendant’s
webpage.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

93
Q Do you have any knowledge regarding any
changes or modifications made to reports that are
posted on RipoffReport by a consumer? In other words,
if a consumer posts a report, and I think you guys
have made some allegations that my client makes
modifications or changes to the report, what evidence
or information do you have about any changes that may
have been made to a report?
A Well, at this point we have very little
except when we compare the information to -- if we're
able to compare the information to our records and
what's on the report we get different things. We can
make comparisons and find differences. If we can find
the original postings and compare them to what's on
the web site I think we'd find market differences.
Q What do you base that on?
A Intuition.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

94
Q Anything else?
A No. I think we're going to continue to look
for people and continue to find differences.
Q Have you had any situation where you've
spoken to -- you or somebody who works for you had
spoken to an author of a report on RipoffReport?
A No, because we're unsure who the authors are.
Q I'm saying has there been any instance where
you have identified an author and spoken to them?
A As I said we just recently found these six,
we're continuing to look.
Q So thus far you haven't had any conversations
with any authors of any reports?
A Not to my knowledge.
Q And I did mean -A When you say you -Q I meant the company, anyone within the
company.
5

10297-8/ASK/ASK/633298_v1

19
20
21
22
23
24
25

A The company has had continuous conversations
with people who have had complaints. Pages and pages
of conversations with people who have had complaints.
We will continue to talk to them and continue to work
with them.
Q But have you had any conversations with any
of the authors of the reports about the reports, about

95
1 the fact that they posted or whether they posted or
2 what they posted?
3
A Not to my knowledge.
(Simon Transcript, p. 93. l. 9 through p. 95. l3.) As shown in the quote above, Mr.
Simon admitted that Whitney had been looking for evidence that Defendants authored the
alleged defamation, but found none. The relevant pages of Mr. Simon’s deposition have
been attached as Exhibit A to this Notice.
Likewise, Mr. Russell E. Whitney testified that he had no knowledge regarding
who authored or provided content to any alleged defamatory statement at issue in this
case. See Deposition of Russell E. Whitney, p. 70 ll. 11 through 17, “Do I have any
knowledge [or information] regarding who authored the reports that are on RipoffReport?
. . . No, not at all.” The relevant pages of Mr. Whitney’s deposition have been attached
as Exhibit B to this Notice.
Plaintiff’s counsel informed Defense counsel that Plaintiff opposes this motion
because Defendants opposed Plaintiff’s motion to extend the time to respond to the
Motion for Summary Judgment. In that circumstance, Plaintiff wanted to depose
witnesses that had already given declarations under oath stating that they had not created
any of the alleged defamatory content posted by Plaintiff’s customers. Defendants argued
that delay was pointless because Plaintiff already had the witnesses’ sworn statements,
and there was no likelihood that depositions would find any evidence against those sworn
declarations. Plaintiff also stated opposition because Defendants had given the Court
notice that the Ninth Circuit’s decision in Fair Housing Council of San Fernando Valley
v. Roommates.com, L.L.C, 489 F.3d 921 (9th Cir. 2007) (“Roommates”), the main
authority cited by Plaintiff in opposition to the Motion for Summary Judgment, had been
6
10297-8/ASK/ASK/633298_v1

depublished. Plaintiff’s desire to retaliate is not a substantive reason to deny the motion,
so Plaintiff has no substantive reason to oppose the requested supplementation of
evidence.
As set out in the Motion for Summary Judgment, Defendants operate an
interactive computer service and did not author the content of any alleged defamatory
statements, so, pursuant to 47 U.S.C. § 230(c)(1), Defendants cannot be liable as
publishers. Plaintiff Whitney admits it has not evidence that Defendants provided the
defamatory content. The Court should allow supplementation of the Motion for Summary
Judgment, and the Motion for Summary Judgment should be granted.

DATED January 28, 2008.
JABURG & WILK, P.C.
s/Maria Crimi Speth
Maria Crimi Speth, Esq.
Attorneys for Defendants
CERTIFICATE OF CONFERENCE PURSUANT TO LOCAL RULE 3.01(g)
I hereby certify that on the 28th day of January 2008, I caused my associate to
communicate with opposing counsel requesting that opposing counsel stipulate to resolve
the issues raised by this motion, but opposing counsel opposes allowing Defendants to
supplement the Motion for Summary Judgment.
DATED January 28, 2008.
JABURG & WILK, P.C.
s/Maria Crimi Speth
Maria Crimi Speth, Esq.
Attorneys for Defendants

7
10297-8/ASK/ASK/633298_v1

CERTIFICATE OF SERVICE
I hereby certify that on the 28th day of January 2008, I caused the attached
document to be electronically transmitted to the Clerk’s Office using the CM/ECF
System for filing and transmittal of a Notice of Electronic Filing to the following
CM/ECF Registrants:

Steven Neil Lippman
Shawn L. Birken
Scott W. Rothstein
Rothstein Rosenfeld Adler
Suite 1650
401 E Las Olas Blvd
Ft Lauderdale, FL 33301
Attorneys for Plaintiff

Brian J. Stack
Stack, Fernandez, Anderson,
Harris & Wallace, P.A.
1200 Brickell Ave., Suite 950
Miami, FL 33131-3255
Attorneys for Defendant

s/Debra Gower

8
10297-8/ASK/ASK/633298_v1