Letter to the Editor: When Litigants Need to Rebut Defamatory Statements
Sometimes First Amendment rights to rebut and set the record straight need to be exercised by parties in litigation before a verdict in order to effectively defend reputation on a timely basis.
March 06, 2018 at 12:50 AM
2 minute read
Note: This letter from Lanny Davis is in response to my Feb. 28 column, Who Needs a Courtroom if You've Got a Podcast? For the record, I did reach out to Davis for comment the day before my deadline, but he did not respond until after publication.
To the Editor of The American Lawyer's Litigation Daily:
Your article published on February 28 about Versata's use of podcasts and other public media to defend the reputation of its software product, which evidence shows saved Ford over $1 billion, raised the question whether it is necessary to make a timely rebuttal in the media of defamatory statements made in legal pleadings, which are absolutely protected from defamation actions, rather than wait for the verdict.
I respectfully suggest that waiting for the verdict in Versata's litigation against Ford is an inadequate remedy to correct the harmful effects of defamatory statements about its software product.
Our position is that when Ford publicly asserts falsely in its legal papers that Versata's ACM software product was inferior and unoriginal, that assertion needs to be immediately rebutted, and cannot wait for a verdict. The harm to reputation among current and future customers is made worse in the age of the Internet where Google searches magnify misinformation so many times that by the time the truth catches up in a verdict or headlines many months away, the repair to false accusations that harm a product's reputation will be too late.
Moreover, verdicts in litigation are hardly always clear rebuttals to many factual misstatements. More often the verdict is ambiguous.
So sometimes First Amendment rights to rebut and set the record straight need to be exercised by parties in litigation before a verdict in order to effectively defend reputation on a timely basis. This is especially so where one party seems to use the absolute immunity rule not as a “shield” to guarantee a free flow of legal arguments and facts to determine a verdict, but rather, as a “sword” to immunize false and damaging statements made in legal proceedings.
Sincerely,
Lanny J. Davis
Attorney for Versata
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