Friday, July 18, 2014

False Light, the Ripoff Report and Defragmentation

This post examines a recent opinion from the Michigan Court of Appeals:  Rooks v. Krzewski, 2014 WL 1351353 (2014). Joseph Krzewski appealed when, after a bench trial, a udge held he “portrayed” the two plaintiffs, Jonathan Rooks and Bradley Guizinga, "in a false light." Rooks v. Krzewski, supra.  The judge ordered Krzewski to "remove the false statements about [them] from the Internet and enjoined him from republishing any of the false statements." Rooks v. Krzewski, supra.  (For more on false light, check out this post.) 
The Court of Appeals began its opinion by explaining that in April of 2010, the plaintiffs
Jonathan Rooks and Bradley Gruizinga sued Krzewski for “false light invasion of privacy” and the trial judge found in their favor.  Rooks v. Krzewski, supra.  The court then began its analysis of the false light issues by explaining that Rooks owns 
Parkland Realty, Inc., and Parkland Investments, Inc. . . . Through one of his corporate entities, Rooks purchased an old school building on Broadway Street in Grand Rapids. He sold [it] to Union Square Condominiums, LLC (Union Square), an entity owned by Gruizinga, which developed [it] into approximately 180 condominium units. Gruizinga contracted with Parkland Realty to market the units.

At the time of trial, [Krzewski] was 30 years old and lived with his parents, James and Patricia Krzewski. He previously owned a condominium unit in the Landmark Lofts in Grand Rapids. He has never owned, leased, or occupied a condominium unit in the Union Square building.

Rooks first encountered [Krzewski] in 2006 or 2007 at a home show, where [he] was selling hot tubs. Rooks thought [Krzewski] had a `good sales personality,’ and invited him to apply for a sales position with Parkland Realty. [Krzewski]  had two interviews. However, after Rooks did some `background checking,’ he hired someone [else].

[They] had another encounter when [Krzewski] was selling his Landmark Lofts condominium unit. During the Parade of Homes, [Krzewski] placed a sign on the street indicating his unit was `Best of Parade.’ Rooks called [Krzewski]. According to Rooks, [he called] to let [Krzewski] know that, because his unit was not in the Parade of Homes, he could get into trouble with the Home Builders' Association. Rooks got [Krzewski’s] voicemail, and [it] . . . asked the caller why he or she would want to buy a condominium unit at Boardwalk, which has high dues and is a block from the Grand River, when one could live directly on the river. Rooks asked [Krzewski] to call him, and [he] did. Rooks told [Krzewski] it did not make sense to promote his condominium unit by badmouthing other condominium developments. According to [Krzewski], Rooks threatened to sue him for his unlawful participation in the Parade of Homes.
Rooks v. Krzewski, supra.  
The court then explains that while Krzewski “never owned or lived” in a Union Square
condominium unit, he posted messages on the Union Square Forums, an Internet website for discussion of Union Square. His user name was `BestofParade.’ On April 29, 2008, [Krzewski] inquired on the Union Square Forums whether it was true that an owner of a condominium unit had been injured due to faulty construction.

On June 29, 2008, [he] answered his own inquiry and stated it was not a rumor, explaining that `[f]ormer resident Matt Stanley # 324 was injured pretty bad.’ On November 10, 2008, [Krzewski] sent Allen Derusha, administrator of the Union Square Forums, a message, asking Derusha why his posts were being deleted and promising his best `to post warnings about U2 [Union Square] on’

On January 3, 2009, `Terryb’ from Grand Rapids posted a report about Rooks and his corporate entities on (the ripoff report). The ripoff report read, in pertinent part:

`Beware of Jon Rooks, his development companies, and his main partner in development, Brad Gruizinga. These people mislead buyers, provide extremely shoddy and low quality workmanship, cut every possible corner, lie when they are confronted, and then absolve themselves of any ownership of problems after the sale, leaving their customers with unfinished condos and bad quality work. Here are just a few actual situations that purchasers of Jon Rooks' condos have experienced:

1. Low quality construction work with little soundproofing. Many owners of Parkland condo developments experience major problems. . . . No insulation was used in walls, leaving just a few layers of drywall between units. . . .

2. When you close on your condo, you are given a `punch list’ of construction items that need to be corrected. . . . Rooks and his company pressured many people to close on their condos before they were completely finished. The problem is that once the closing documents are signed, Parkland and Jon Rooks are completely absolved of any further legal responsibility for the construction. People that closed on their condos years ago still have not had their punch lists completed. . . .

3. Jon Rooks and his company advertising [sic] one of his developments as `luxury condos.’ Owners were promised exercise facilities and two laundry rooms. However, . . . Rooks' company purchased used exercise equipment that broke down less than a year later. Owners were then  stuck with the bill of thousands of dollars to replace [it]. Owners were also promised to [sic] laundry rooms, but Rooks decided only one was necessary, with only two washers and dryers for 180 condos. . . .

4. Jon Rooks and Brad Gruizinga have the condo association documents written so they maintain control over the condo association even when 95% or more of the condos have been sold. . . .

7. Jon Rooks is a pathological liar. You can't believe anything he says. . . .' 
Rooks v. Krzewski, supra.  This part of the opinion has nine lengthy paragraphs outlining allegations attributed to Krzewski.  I cannot include all of that in this post; if you would like to read the whole thing you can find the entire opinion online, for free, here.
The court then took up the “” issue, explaining that Krzewski acknowledged
he is a registered user of His user name is `Upsetcustomer.’ [He] denied he was `Terryb’ or . . . prepared any portion of the ripoff report. According to [Krzewski], he made no efforts to contact `Terryb’ or to learn the identity of `Terryb.’

[Krzewski] posted three comments to the ripoff report. In the first comment, titled `JON “CROOKS” ROOKS,’ [he] wrote, `I would suggest contacting the BBB of Western Michigan and file a complaint. This man associates himself with a lot of snakes. . . .’ In the second complaint, [he] wrote that . . . he had been threatened with a lawsuit by Rooks after voicing his concern about high maintenance fees at Boardwalk. He, therefore, understood why `Terry B.’ decided to conceal his identity.

The third comment, which defendant wrote under the user name `paybacksabitch,’ was titled, `WARNING!!! WATCH OUT FOR BINDING ARBITRATION CLAUSE IN PARKLAND REALTY PURCHASE AGREEMENT AND/OR CONTRACT.’ [Krzewski] posted some questions and answers regarding binding mandatory arbitration and a page from `Parkland Realty's purchase agreement’ that included a provision on dispute resolution. [At trial, Krzewski] testified that he received the purchase agreement through a Freedom of Information Act (FOIA) request he sent to the Bureau of Commercial Services after reading of a complaint on the Internet.
Rooks v. Krzewski, supra.  Again, the opinion gives more detail than I can include here.
One other thing of note is that on December 28, 2009, Krzewski “made a posting” to Craigslist to which he attached three documents, one of which was “a criminal record report that showed Rooks had been charged with operating while intoxicated in 1996.”  
Rooks v. Krzewski, supra.  He testified at trial that he obtained the report “from the state of Michigan through ICHAT.”  Rooks v. Krzewski, supra.  Again, there were many more comments posted in various places, none of which were, to say the least, complimentary to Rooks. If you are interested, check out the full opinion at the site noted above.
While the case was being prepared for trial, the judge ordered that the plaintiffs’ computer expert, Brandon Fannon, was to be allowed to inspect Krzewski’s computers.  Rooks v. Krzewski, supra.  After Krzewski turned his laptop over to the plaintiffs to be examined, they moved for an order to show cause and sanctions.  Rooks v. Krzewski, supra.  The judge held a hearing on the motion and Fannon testified that the plaintiffs hired him to examine 
four computers: (1) a desktop computer from [Kraweski’s] place of employment; (2) a desktop computer that belonged to [his] parents; (3) a laptop computer that belonged to [Krzewski]; and (4) a desktop computer that belonged to [him]. Fannon was concerned that data had been deleted from [Krzewski’s] parents' desktop computer and from [his]  laptop computer.

He explained that [Krzewski’s] parents' desktop computer had been delivered to him on November 24, 2010, and earlier that morning, disk cleanup and disk defragmentation had been run on [it]. In addition, three files in a folder titled `AOL Saved PFC,’ which is a container file for email, had been accessed at 9:12 a.m., but the three files were no longer on the computer. Fannon believed it was highly unlikely that the steps taken on the desktop computer were for a purpose other than to cause data loss. In addition, [he] testified that similar steps had been taken to [Krzewski’s] laptop computer before it was delivered to him. . . . [T]he Firefox browser was uninstalled and disk cleanup and disk defragmentation were run. . . . Fannon was not prepared to say that information on [Krzewski’s] laptop computer was completely destroyed or was unavailable.

Information could be recovered from the volume shadow copy, and he had not done any analysis of the volume shadow copy. Windows XP, the operating system on ]Krzewski’s] parent's desktop computer, however, does not automatically generate a volume shadow copy.
Rooks v. Krzewski, supra.  
Krzewski admitted he had run disk defragmentation and disk cleanup on his laptop
shortly before he delivered it to Fannon. He explained he had private images on the computer, which were irrelevant to the case, and did not want Fannon to see them. In addition, [Krzewski] acknowledged that he deleted the Firefox browser from his laptop computer. He did not want Fannon to see the websites he had visited.

[He] denied he performed disk cleanup and disk defragmentation on his parents' desktop computer. He presumed his mother ran the disk cleanup and disk defragmentation. His mother has said she runs these programs all the time. However, [Krzewski] had told his mother Fannon was an expert in computers and that, if there were any images or emails on the computer she did not want Fannon to see, she should get rid of them.

At the conclusion of the hearing, the trial court stated that, because personal information is stored on a computer, what [Krzewski] did was `somewhat understandable.’ However, it also stated that `from the truth-seeking perspective, it's simply not allowed.’ The trial court held that [Krzewski] was required to pay for Fannon's additional efforts to obtain and review information on [his] laptop computer and [his] parents' desktop computer. However, the trial court was not prepared to say that evidence had been lost because Fannon and [Krzewski’s] expert agreed the deleted data could probably be recovered from the volume shadow copy.
Rooks v. Krzewski, supra.  
At trial, Fannon testified that since the hearing, he had not done anything to
further analyze [Krzewski’s] parents' desktop computer. The operating system on the computer did not create volume shadow copy and, therefore, the data that was `overwritten’ was no longer accessible or recoverable. Fannon recalled that on November 24, 2010, the day he was supposed to analyze the parents' desktop computer, the computer was delivered to his office at 12:30 p.m. He discovered that at 9:12 a.m., the AOL address book was accessed, but the address book was no longer on the computer. In addition, after the AOL address book was accessed, the recycle bin was emptied and disk cleanup and disk defragmentation were run on the computer. The disk defragmentation was manually executed.

Fannon believed this was a `sophisticated, yet unsophisticated’ attempt to permanently delete data. According to Fannon, the same steps were taken to [Krzewski’s] laptop computer before it was delivered to his office on January 4, 2011. . . . Fannon [said] anything [Krzewski] posted to the Internet in 2009 was not done using the laptop computer. Fannon testified that he found nothing on “Krzewski’s] desktop computer to indicate that any data had been deleted from that computer.
Rooks v. Krzewski, supra.  At trial, Patricia Krzewski testified that she “knows how to defragment her computer” and “does so about once a week.” Rooks v. Krzewski, supra.  
The Court of Appeals then addressed the false light issue, noting that the trial judge found Krzewski was Terryb, based on “circumstantial evidence.” Rooks v. Krzewski, supra.  The trial judge noted that Terryb has not been
formally identified. As such, one can conclude this is a false name. [Krzewski] has a history of using false names on his internet posts. It appears the earliest Terryb post was in October, 2009. This was about one year after [Krzewski] first began posting negative comments on various forums and wrote, `I will do my best to post warnings about U2 on’
Rooks v. Krzewski, supra.  
In finding for the plaintiffs, the trial judge found that Krzewski, posing as Terryb,
knew or acted in reckless disregard of the falsity of the statements. . . . [T]he information contained in the ripoff report was detailed and required research and that, although it was evident [he] had spent `considerable time and effort “digging up dirt”’ on Rooks and Gruizinga, many of the facts were `half-truths or complete fabrications,’  which were similar to [his]  unilateral declarations that Rooks damaged a fishery. . . . According to the trial court, [Krzewski] published any negative information about Rooks or Gruizinga he could find without regard to the accuracy of it. [He] did so, stated the trial court, because he had an `irrational ax to grind’ with plaintiffs because Rooks did not hire him and Rooks confronted him about his improper claim that his condominium unit was `Best of Parade.’ 

The trial court further found that, even if [Krzewski] was not `Terryb,’ [his] reckless disregard of the falsity of the statements was exemplified by the following: (1) [he] used a variety of disguised names to post material on the Internet, making it look as if there were a variety of posters; (2) [he] sent an email to Rooks's business competitors; (3) [he] published that Stanley, a nonexistent condominium unit owner, was injured due to construction negligence; (4) [he] wrote that one of Rooks's developments had a negative effect on a critical fish habitat in the White River, despite having never been to the area; (5) [he] admitted in a pretrial proceeding he attempted to erase or hide evidence on his computers; and (6) [he] lied and declared his former condominium unit `Best of Parade’ to lure potential purchasers to it.
Rooks v. Krzewski, supra.  
The Court of Appeals began its analysis with the trial judge’s finding that Krzewski was Terryb, noting that if  the only evidence that supported the trial court's finding . . . was the fact that [Krzewski] used `false names’ on the Internet, we would be left with a definite and firm conviction that the trial court erred in finding that defendant was `Terryb’”, but his “use of `false names’ is not the only evidence that supports the trial court's finding.” Rooks v. Krzewski, supra.  It explained that in finding Krzewski was Terryb, the judge did not believe
[his] testimony that he was not `Terryb’ or that he did not prepare any portion of the ripoff report. We are required to give due regard to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it. . . .

Second, `where a party deliberately destroys evidence, or fails to produce it, courts presume the evidence would operate against the party who destroyed it or failed to produce it.’ Hamann v. Ridge Tool Co., 213 Mich. App. 252, 539 N.W.2d 753 (Michigan Court of Appeals 1995). Fannon testified that `sophisticated, yet unsophisticated’ attempts to permanently remove data from [Krzewski’s] laptop computer and his parents' desktop computer were done only hours before the computers were delivered to his office. The attempt to delete data from [his] laptop computer does not lead to any presumption against [Krzewski].

Fannon testified that he analyzed the volume shadow copy on the computer, and a booklet of what he found was presented at trial. There was no testimony that the attempt to delete data from the computer resulted in the actual loss of any data. However, Fannon testified that the data that was overwritten when disk cleanup and disk defragmentation were run on [Krzewski’s] parents' desktop computer was no longer accessible or recoverable because volume shadow copy was not used by the computer's operating system. Although [his] mother testified that, whenever she thought there might be a virus on the desktop computer, she ran disk cleanup and disk defragmentation on the computer, because the disk cleanup and disk defragmentation were run only hours before the desktop computer was delivered to Fannon, the evidence supports a finding that [Krzewski], who lived with his parents, ran the cleanup and defragmentation in an attempt to destroy data. Accordingly, the evidence presented at trial allowed a presumption that the data deleted from defendant's parents' desktop computer would have operated against [Krzewski].

Third, in its opinion, the trial court stated [Krzewski] had `an irrational ax to grind’ with Rooks and Gruizinga. [He] took numerous actions to grind his ax. He posted on the Union Square Forums that he would do his best to post warnings about Union Square on He posted three comments to the ripoff report, and in [them] said, in part, that Rooks . . . associated with `snakes,’ and had threatened to sue him. [He] repeatedly posted the ripoff report on To postings, he attached a criminal record report . . . that showed Rooks had been charged with operating while intoxicated. . . .. He submitted uncomplimentary reviews of Rooks on . . .

The evidence supporting the trial court's finding that [Krzewski] was `Terryb’ cannot be classified as overwhelming or significant. Nonetheless, the evidence showed that [he]  actively pursued grinding his ax with Rooks and Gruizinga, often doing so while using “false names” on the Internet, and that [Krzewski]  was aware of and used

This evidence, when combined with the regard that we must give to the trial court's determination that [his] testimony he was not “Terryb” was not credible and the presumption that data from [Krzewski’s] parents' desktop computer would have operated against [him], does not leave us with a definite and firm conviction that the trial court made a mistake when it found that defendant was ‘Terryb.’ . . .  Accordingly, we affirm the trial court's factual finding that [Krzewski] was the author of the ripoff report.
Rooks v. Krzewski, supra.  
Again, if you are interested in reading more about the facts and precisely what the trial court and Court of Appeals did in this case, check out the full opinion here.

According to the news story you can find here, Krzewski plans to appeal this ruling to the Michigan Supreme Court, raising a 1st Amendment issue. 

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