Wednesday, March 26, 2014

Day 3 of the Baglow v. Smith & Fourniers Defamation Hearing: More Baglow testimony and alleged spoliation of evidence

More Baglow testimony and alleged spoliation of evidence

March 26, 2014 OTTAWA:  Today is the third day of the pseudonymous defamation trial of “Dr Dawg” vs “Peter O’Donnell”.  For background on the case and my comments on the first day, see my blog posting here: , and my report of the second day here:
The day started off at 9:30 am with “Dr Dawg” a.k.a John Baglow, continuing to testify on his behalf.  Under examination from his lawyer Peter Burnet, “Dr Dawg” started the day off with testimony in response to some of the allegations which the defendant Connie Fournier made in a statement of further particulars, which was requested by the judge on Monday.  The questions surrounded a claim of spoliation of evidence. (Spoliation:  the destruction or material alteration of evidence)

There were some allegations in the Statement of Particulars of the defendants that evidence was hidden or changed in the course of the disclosure phase of the case (and/or as part of a separate motion to have lawyer Peter Burnet removed from the case… more on this below), along with some references to maliciousness.  These allegations relate to the disclosure and/or removing of comments from the “Dawgs Blawg” website in and around the time that the blog was apparently being moved from Google’s Blogger platform to a server run by James Bow (”Dr Dawgs” IT guy) which used the blogging platform Movable Type.  As well as multiple iterations of comment software called Echo, Disqus and Holoscan, in relation to comments that appeared under postings on “Dawgs Blawg”.  (I was not able to follow all of the arguments, but that is basically how I would sum up what I heard, without being able to see any of the documents which were being referred to).

According to “Dr Dawgs” testimony, in 2010 and 2011 people’s comments and conversations which appeared on the “Dawgs Blawg” website (underneath his postings) were hosted by a few companies which specialize in comment posting threads.  These included Holoscan, Echo, Disqus, and build in comment software on the Blogger service.  When “Dr Dawg” signed up with a new web hosting server, he wanted his IT guy to move the postings and the associated comments over to the new website.   

This is where it gets much more convoluted and difficult to explain what happened today.  To make it a bit more understandable, I am going to refer to the old Dawgs Blawg and the new Dawgs Blawg.  The old blog was on the Google blogging platform ( and the new blog was on a Movable Type platform. ( The blogging platform just describes the underlying operating system used in the background to host the blog postings.

In trying to move the comments to the new server, “Dr Dawg” explained that “it proved impossible to migrate the comments” over.  By March 2011 the comment service he was using “receiving a ton of junk mail in the comment sections”, so he “switched to Disqus” and was “spectacularly unsuccessful in moving the files” from the old website to the new website. “Dr Dawg” asked his “IT guy”, a person named James Bow to “do your best [in moving the comments to the new server].  I don’t want to lose all those conversations”.

Moving back to the allegedly defamatory words which “Peter O’Donnell” posted on FreeDominion, “Dr Dawg” cut off any notion that the posting was part of a larger discussion across multiple blog sites.  “There was not a discussion between me and Roger Smith across blogs”.  (The claim has been made by the defendants that the defamatory words were part of a larger on-going discussion between “Dr Dawg” and “Peter O’Donnell” and the idea of an on-going discussion was also part of the original summary motion judgment by the court which dismissed “Dr Dawgs” lawsuit

Dr Dawg” found out about the “Peter O’Donnell” posting because “someone alerted me to the post and for the life of me … I racked my brain … and could not remember who”.  When “Dr Dawg” first saw the posting by “Peter O’Donnell”, he was “horrified” and “had a great deal of anger” over it.  In fact was “very angry indeed”.  Dr Dawg” was worried that readers on FreeDominion “who didn’t know me, would go to Google and find out who Dr. Dawg really is”, which would have a negative impact on his reputation.

“In the heat of anger, I put up a comment [on FreeDominion] immediately and I wanted action pronto”.  The comment posted by “Dr Dawg” was posted using a second pseudonym he had called “Ms Mew”. With the “Ms Mew” account he posted that the Taliban comment was defamatory and “I hope Baglow sues the pants off you” (or something to that effect).

He did not make the posting his regular pseudonym “Dr Dawg” because “people would just cruise by it”, so instead he used a second alias, “Ms Mew”.

Dr Dawg” used the alias “Ms Mew” to post on at least four occasions, all within a few hour timeframe.  The first posting he mentions that “I hope Baglow sues the pants off you … for posting that information about the Taliban”.  In the second posting, he was “trying to send a message” to the operators of FreeDominion.  In the third posting he is arguing with “Peter O’Donnell” and says “I’ve posted here before”.  And in the fourth posting, “Ms Mew” answers a question by “Peter O’Donnell” which asks “Tell us who you are?” and “Dr Dawg” posting as “Ms Mew” replies “Why don’t you do the same thing Roger Smith”.  (where he used the real name of “Peter O’Donnell” … Roger Smith)
[The above exchange of “Ms Mew” was a bit hard to follow as an observer, because most of it was just reading parts of what was in the evidence binders and of course I don’t have any of the binders to read along and follow all the testimony]

Sometime after the first posting on FreeDominion by “Ms Mew”, John Baglow sent an email to Connie Fournier, one of the owners of FreeDominion, about the purported defamatory comment posted by “Peter O’Donnell”.  Connie wrote a post on FreeDominion on August 12, 2010 and made some comments about “Ms Mew” actually being “Dr Dawg”.

At this point Peter Burnet, asked for the courts permission to interrupt the testimony of “Dr Dawg” and call their “IT guy” James Bow to the witness stand.  Since Bow is from Kitchener, they wanted to get his testimony over, so that he could return home.  The parties and the court agreed.  So “Dr Dawg” was asked to leave the court room and to not hear any of the evidence Bow was to give.

Peter Burnet then called James Edward Bow to the stand.  He is a 41 year old “self-taught” web designer who lives in Kitchener.  He has a BA in Environmental Studies and has some knowledge of web design and databases. Bow has appeared at times as a co-blogger on Dawgs Blawg and he has administrator access to the website.  Frequently through-out Bow’s testimony he referred to the plaintiff John baglow as “Dr Dawg”.

Bow first met “Dr Dawg” “though the blogosphere”, where he “read the Dawgs Blawg website and took part in some of the discussions”.  In terms of politics, Bow says that “I consider myself to be a centrist”. Bow runs a web design business and is a freelance writer. 

Bow contacted “Dr Dawg” in 2010 to “encourage him to upgrade his website” and “use his server”. “Dr Dawg” used “old software for his website and comments”, which included Holoscan and Echo. Bow “volunteered to help move the comments and website to his server”.  At some point Bow was paid his “standard published rate” for web design work.

The rest of Bows testimony was about trying to move the comments from the old Dawgs Blawg to the new Dawgs Blawg on his server.  He had “tried various means, but it was beyond my skills” to get the old comments working on the new website.

Cross-examination was handled by Connie Fournier the owner of FreeDominion, and who is representing herself at the trial.  She had a nice demeanor during her cross-examination and questioned James Bow like she was a seasoned lawyer, moving from exhibit to exhibit asking pointed and directed questions. 

The rest of the day was taken up with a very detailed discussion about the comment section of Dawgs Blawg website and the apparent failure of moving the old comments over.  This has become an issue in the case because the defence has made allegations about evidence spoliation.  Based on my understanding of the allegations, it is that the comment sections on Dawgs Blawg (old site) were removed while the defence was trying to investigate the context of some postings.  And when the defence lawyer – Barbara Kulaszka – asked for the comments, they were allegedly altered or deleted and/or not disclosed or disclosed in a way which rendered them almost unreadable.

I have some quickly scribbled notes on the entire exchange on this, but I honestly think that this issue is very complex and confusing, since it involved three or four different comment providers, multiple websites and a whole ton of different things.  I could write a short book on the back and forth exchanges.  But I also might get many of the points incorrect, as all the cross-examination by Connie Fournier was reading various posts, XML file extracts and other things in the evidence binder.  And since I could not see what they were discussing, I only got part of what was really happening.  

My main observation of the two hour cross-examination of Bow is that the cross-examination was highly technical in nature and involved not just blogs, but the comment software used to facilitate conversations underneath each blog posting.   This is really worrisome, since the judge is a complete “clean slate” with little experience on the internet and doesn’t seem like she has a firm grasp on computers, and all the techno-babble surrounding it.  Terms were used frequently like:  server, comment server, IP address, external comment server, comment threads, comment thread links to posts, XML files, text files, mark-up languages, database tables, comma separated values, Site Meter, Movable Type, Disqus, Blogger, Blogspot, etc etc etc.  

One thing that would have made the whole process a lot better for the judge would be a large white board, and all the servers, and the timeline of when comments were on what server could be sketched out.  It would have made understanding the evidence so much easier to follow along with and easier to digest for the judge.

The other observation I had was; that it appeared like Connie Fournier did succeed in getting a few points clarified.   James Bow put in an affidavit earlier in the case in response to a motion the defence filed to have lawyer Burnet removed from the case (I am not sure of the specific allegations against Burnet and it was not made clear during the testimony today).  I would assume that the motion failed, since Burnet is still on the case, but Connie did cross-examine Bow on this affidavit. In the end, Bow did state that in one section (and this is me paraphrasing his answer) “I might have misremembered for this affidavit”.  Which was a reference to the comments section on Dawgs old Blawg.

The hearing continues tomorrow at 9:30am, with the completion of “Dr Dawgs” examination by his lawyer and then cross-examination by the defendants will start.  At the end of the day the judge seemed a bit upset over the scheduling of this case.  Originally it was only set for 3 days, now it appears that it may well last at least two weeks!  The trial will go to Friday, then break and come back at some point in the future, possibly around the summer, for another week of hearings.

(All the comments above are taken from my quickly scribbled notes of what happened, so take them with a grain of salt.  There might have been parts that I missed, or not fully understood.  These are simply my opinions on what happened, not statements of fact.  In the event of any errors or inaccuracies, please email: marc (at) lemire [dot] com for corrections)