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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Business Law
Satisfied Customers: 37884
Experience:  Run my own successful business/contract law practice.
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I have a question about fraudlulent/forged evidence that is being submitted against me in

Customer Question

I have a question about fraudlulent/forged evidence that is being submitted against me in a lawsuit.

I am the defendant in a suit that had just been filed against me this week by a competitor of mine, seeking damages of $22,000,000 for what he claims is my infringing on his copyright/trademarks as well as unjust enrichment as a result of our nationally competing websites. I have discovered through researching his accusation against me that he temporarily doctored his own website on Oct 5th, 2012 to deliberately make it look like mine, just long enough to take a "screenshot" that he is now using as his primary evidence against me, and then goes on to claim that I was the one to make changes to my website and made it look like his within days of him making these changes on Oct 5th, 2012. The problem with his accusation/story is that my web hosting company can provide me with irrefutable, time-stamped proof that my website has been exactly the same with not changes of any kind made..
Submitted: 1 year ago.
Category: Business Law
Expert:  Dimitry K., Esq. replied 1 year ago.
Thank you for your post.

I have reviewed your question and understand the situation. What specifically is your question?
Customer: replied 1 year ago.

I am primarily interested in knowing how serious of a mistake this false evidence claim is on his part, the legal ramifications that this could now mean for him, whether or not this could constitute criminal fraud on his part, and how to best proceed with a counterclaim to defend myself against his initial accusations of me while also providing the clear evidence I already have that will prove he manufactured this evidence against me.

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your patience.

First of all, this isn't false evidence, not exactly. It is merely their position which you can attack by showing screenshots of their past site pages, current site pages, and the site page from the date they took the screen shot. This actually gives you a very potential right to counterclaim against THEM for copyright infringement if they used your designs and graphics, or at least made their site look substantially like yours, since that wasn't your doing. This only strengthens your case and permits you to seek a dismissal. This isn't criminal fraud, but it is potential copyright infringement against you. For that purpose you may want to seriously consider retaining your own intellectual property attorney with litigation experience and filing suit.

Good luck.

Dimitry K., Esq., Attorney
Category: Business Law
Satisfied Customers: 37884
Experience: Run my own successful business/contract law practice.
Dimitry K., Esq. and 5 other Business Law Specialists are ready to help you
Customer: replied 1 year ago.

Thank you. Just a bit further clarification if I may ask. Why would this not be considered false evidence if it can be proven that they have lied and created this evidence out of thin air? Just to make sure I am explaining this correctly, he never actually made the changes to his website that he claimed he did on Oct 5th. All he basically did was create a screenshot of what his website was supposedly changed to look like, but he likely just did this in a Powerpoint slide or something of that nature, and then is using that as one of his primary justifications as to why I owe him these outrageous damages. Not to mention that my website has always looked the same before during and after the date of his claim. So, I appreciate the clarification if you don't mind, but why specifically could it not be used as evidence of criminal fraud when it has such an extortion-like feel to it? Thank you I really appreciate your help.

Expert:  Dimitry K., Esq. replied 1 year ago.

My apologies, I misunderstood, I thought he changed his website to look like yours via server rather than powerpoint. If he did the latter, that's just silly and helps you. It is still your duty to file against them or defend in court by proving that the information is incorrect, so the fact that you caught this is wonderful. The courts will not somehow punish them for it, but they will remove that as evidence against you if you make your case well enough, which is the whole point of the defense. The court will not care if it is true or false, they will care if you are able to refute, so if you can do so, this is only good for you.

Second, this isn't a criminal matter, at all--this is a civil claim. Therefore this isn't a criminal matter and no criminal fraud attaches to this situation. I realize that you are likely angry over this person and want to pursue him, but pursuing him via the courts and making him pay your attorney fees when you counter-claim as well as damages would be far sweeter.

Good luck.

Customer: replied 1 year ago.

Thank you! That helps a lot. Naturally, it is difficult not to be outraged over this, but whether it is criminal or not I didn't know. I supposed that the main thing that I am hoping to hear is that if I can prove to the court beyond a shadow of a doubt that such a large part of supposed "evidence" on his part that he is using to sue me for all this money is blatantly false and has been forged by him, I am assuming that he is going to have to be held accountable in some way or another for this, since, had I NOT caught him in this lie it could have a devastating impact in my business and life. The facet to this is the fact that he is a Series 65 Registered Investment Advisor who is held to the highest ethical standards by FINRA. I would imagine that FINRA would also be very interested if I can prove that he has attempted to use this false evidence to unjustly sue a competitor. Any final thoughts?

Expert:  Dimitry K., Esq. replied 1 year ago.

My apologies but you are thinking 'criminal' again. "Beyond the shadow of a doubt" is a criminal term for the burden of proof prosecutors have to prove guilt. In civil court the burden is far lower, it is merely 'preponderance of the evidence', which is easier to show. That means that if you have more evidence than he does (literally 51% to his 49%), you have a claim and have the ability to prevail.

As for FINRA, it so happens that before law I was a Series 6/7 representative with what was still called the NASD. They do investigate unethical behavior but they tend to focus on behavior that is related to client interactions and investments. While you can contact them, they will not investigate this as it is not related to client fraud, churning, or other fiduciary duty violations, as he does not owe you any fiduciary duty.

Good luck.

Customer: replied 1 year ago.

Ok, I think where maybe I have gotten confused is that I had read on some legal websites that a civil case cannot turn into a criminal case, but sometimes a civil case can prompt a separate criminal case, for various reasons such as perjury, contempt, falsifying evidence and so forth, is that a fair statement? But is it still far-feached in my part to think that his falsifying of this evidence could lead to that?

Expert:  Dimitry K., Esq. replied 1 year ago.

Thank you for your follow-up.

That is possible but only if cause was given. If the person lies to the judge and the judge calls him out on it, he may charge him with contempt as well request that perjury charges be brought to him. "Falsifying evidence" is generally something that occurs in a criminal situation, where the police create evidence against the defendant. I do think this is extremely far-fetched and not a practical hope to maintain.

Good luck.

Customer: replied 1 year ago.

Ok, thank you very much. That's all I need for now. I greatly appreciate your insights! Have a nice evening.

Expert:  Dimitry K., Esq. replied 1 year ago.

You are most welcome, and good luck to you!

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