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Fisherman’s group sues ex-member over emails

Judge rules group’s electronic evidence isn’t hearsay

//November 11, 2012

Fisherman’s group sues ex-member over emails

Judge rules group’s electronic evidence isn’t hearsay

//November 11, 2012

What began as a seemingly minor conflict between a nonprofit group of fisherman and a former member has escalated from a sophisticated cyber cat-and-mouse game to a criminal complaint and, finally, a protracted federal lawsuit.

Members of the Custom Rod Builders Guild say that former member Thomas Kirkman flooded their inboxes with anonymous and harassing emails after he left the group and started his own club for fishing aficionados.

Some of the emails warned members that the guild was misusing their dues. Others wrongly told them that exhibitions had been cancelled or that the guild was going under and wasn’t on par with Kirkman’s club. After years of deleting and, in some instances, falling for the bogus messages, the guild members got annoyed enough to do some detective work.

One member, a retired police officer, replied to the mysterious emailer through a certified email service called, which revealed that the unique Internet Protocol address of the recipient matched Kirkman’s IP address. Then the guild asked its web host to create a fake online forum that could only be accessed by Kirkman’s address.

And it wasn’t long before Kirkman allegedly took the bait, sending guild members anonymous emails that referenced discussions posted on the fake forum. The guild took their evidence to the police and came away with a misdemeanor warrant charging Kirkman with cyber stalking and email harassment.

But the district attorney dismissed the case, determining that it was more of a civil matter than a criminal one. Kirkman then sued the guild and two of its board members for malicious prosecution and unfair trade practices.

Cane pole to fly rod

The guild scored a legal victory on Oct. 15, when U.S. District Court Judge L. Patrick Auld ruled that its smoking gun cyber evidence was admissible. He also dismissed Kirkman’s unfair trade practices claim for being too flimsy.

Kirkman and his attorney, B. Ervin Brown II of an eponymous practice in Winston-Salem, had argued that the DidTheyReadIt results were inadmissible as hearsay. But Auld determined that electronic data, by its nature, cannot be hearsay.

Auld cited the 4th U.S. Circuit Court of Appeals’ 2007 holding in U.S. v. Washington that “only a person may be a declarant and make a statement” and that “raw data generated by machines do not constitute ‘statements,’ and machines are not ‘declarants.’”

An attorney for the guild, Jeffrey B. Kuykendal of McAngus, Goudelock & Courie in Charlotte, said the decision affirms well-established case law.

“The point of the rule is that a machine is not going to misremember or lie. It’s simply following a program and doesn’t make an affirmative declaration,” said Kuykendal, who declined further comment on the ongoing case.

In granting the guild summary judgment on Kirkman’s unfair trade practices claim, Auld found that Kirkman had failed to prove damages. “Plaintiff claims a loss of profits, but he has shown only a reduction in gross receipts. Without any proof of year-to-year expenses, such evidence does not show a reduction in profits,” he wrote.

Despite the setback, Brown said Kirkman’s case isn’t sunk. Their malicious prosecution claim is still in play and they have potentially damaging testimony from the guild’s own computer forensic expert. That expert examined Kirkman’s computer and was unable to find any conclusive evidence tying him to the harassing emails, Brown said.

“The results they claim to have gotten from those traps were in contradiction to the findings of their own expert,” he said. “I plan to call on that expert as an adverse witness in our case.”

Although the rest of the evidence is stacked against him, Kirkman denies that he is the irksome emailer. Earlier in litigation, he extended an offer of judgment to the guild, saying he’d agree to their request for an injunction to stop the emails but would not confess to being responsible for the messages.

Of course, the guild rejected the deal.  After all, Kirkman could agree to the injunction and when the emails kept coming say that proved he wasn’t sending them, even if he was. Now the case, which has been pending for nearly two years, is headed to trial.

“This started out as a cane pole and worm case and it turned into an expensive fly rod case,” Brown said. “It’s been a long, hard battle.”

The 31-page decision is Kirkman v. Tison, et al., Lawyers Weekly No. 12-03-1057.

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