NAMED PLAINTIFF IN NANO-SCRATCH CLASS ACTION DID NOT AUTHORIZE THE LAWSUIT . . . In an "Open Letter to the Mac Community," Jason Tomczak explains why he did not "approve, endorse, authorize, initiate or promote" the Nano-scratch lawsuit against Apple. According to Tomczak, his name was used on the lawsuit without his permission. Then all hell broke loose: "I began getting hate mail from people upset about the iPod Nano suit. I had to take my website down and remove legitimate references to my name on numerous web services. My fiancee and I were afraid to go outside in our own home town for fear of recognition and reprisal."

The story got more bizarre when, according to an account at Overlawyered, "Tomczak hired lawyers and filed a lawsuit against the law firms" that brought the original class action with his name. For many reason, that's a step that many lawyers might have advised against. Tomczak was later deposed:

Were the majority of their questions directly related to the Nano issue? No. They wanted to know details about my family, the personal circumstances of why my parents got divorced, what I thought about their divorce; where I went to grammar school, high school, college, what my majors were; names, locations and ages of family members and a number of other personal topics seemingly unrelated to the Nano issue.

In his Open Letter, Tomczak says that he released it, in part, to "communicate the truth of what happened so that I can begin to find some peace of mind after the hate, harassment and embarrassment brought about by the misuse of my name in the iPod Nano suit."

I don't know what to think about this. Ted Frank at Overlawyered implied that one lesson to draw is "don't sue plaintiffs' lawyers."  Fair enough, but you've also got to wonder about the community of Nano-lovers, the ones who sent the hate mail and made Tomczak afraid to go outside. To me, they seem even more scary.

Comments

[Mike]

you've also got to wonder about the community of Nano-lovers, the ones who sent the hate mail and made Tomczak afraid to go outside.

Yep. The guy seems to be literally afraid for his life. Wowzers -- I guess people really love their Nanos.

[Jeff]

" 'Tomczak hired lawyers and filed a lawsuit against the law firms' that brought the original class action with his name. For many reason, that's a step that many lawyers might have advised against."

What is Tomczak supposed to do? Interesting that Evan doesn't even reprimand the slimeball lawyers that commandeered his name to file this suit.

And you wonder why ordinary people hate lawyers?

[Evan]

Jeff: There are many things one can do short of filing a lawsuit. It's a point I'm sure you've made yourself on this weblog. Well then, we agree.

Since I don't know everything Tomczak did short of filing a lawsuit, it's hard to say whether suing the lawyers was a good move or not. Similarly, I don't know exactly why the lawyers Tomczak sued made their alleged big goof that resulted in their improperly using his name. That's why it's a little hard to "reprimand" them.

Hope that clears up any confusion. Did you read the "Open Letter"?

[Jeff]

I did read the "Open Letter". And you're right that I advocate means other than lawsuits for resolving disputes.

For David Meyer and Associates, I suspect they'll now be receiving the death threats and hate mail. And the web will provide a permanent record of their misdeeds to anyone that takes the time to do a google search. Maybe these types of logical consequences will do more to dissuade them than Tomczak's ill-fated lawsuit.

[mobar]

The lesson is "don't sue plaintiffs' lawyers"? Because they go out and hire mean defense lawyers? Those defense lawyers are mean all the time, and they don't survive entirely on defending plaintiffs' lawyers. Isn't Ted's real lesson - don't sue? Ever. No matter what.

I'm curious what claims Tomczak brought against the lawyers. A malpractice carrier was mentioned, but I don't see how one can sue for malpractice if you're denying you ever retained their services. Tomczak also mentioned an anti-SLAAP motion, which suggests a defamation claim or something similar. It's a lawyer's job to explain to the client the scope of discovery prior to filing a claim. People need to understand that they don't just get to tell their story, the opposition is going to be interested in the surrounding parts of it to make sure you're not just cherry-picking the beneficial facts. If you're claiming loss of stature in the community, I'm going to figure out what your stature was before the incident (e.g. don't tell me a misdemeanor arrest ruined your reputation when you'd previously been convicted of a felony.)

As a defense lawyer, I usually explain to the plaintiff during the deposition why certain, seemingly irrelevant, questions are being asked. "And now I'm going to ask you what friends and family you have in Los Angeles County, so we'll know if any of them turn up in the jury pool." That always relaxes people, they never seem to notice the premise that their friends and relatives will lie if they're in the jury pool and asked if they know any of the parties. And I'm not sure the questions are really necessary, anyway, I just don't have the freedom not to ask them - it's entirely possible that some evil defense lawyer came up with this evil outline that maximizes the time it will take to depose the plaintiff, while minimizing the odds that the plaintiff's attorney will have grounds to halt the deposition.

I'm not like Ted, I do think some people should sue, and not just because my paycheck comes from defending people. But I'm not feeling as generous as Evan - I really can't imagine the scenario in which it makes sense to sue the lawyers in this case if Tomczak was sincere in his original concerns about privacy. Particularly if, as suggested by his letter, he is paying his own attorneys an hourly rate for the experience. I'd love to know more details about this case, because from what I can see it just doesn't seem right.

[Rufus]

Mobar, a legal malpractice policy generally provides coverage for certain defined torts committed in the course or scope of rendering professional services, such as defamation, invasion of privacy etc. That said, I agree that if the guy's concerns are his privacy suing the lawyers seems to contradict that concern. But, you know, whatever, litigation is an indutry and it keeps a roof over my head, food in my stomach, etc.

[mobar]

Rufus - thanks for the explanation. I've never bothered to consider what our malpractice policy covers because no one would ever bother suing us - they'd just go after the company directly. As long as we get that Answer filed on time, we're good. That probably sounds awful, but it's true.

[mythago]

They wanted to know details about my family, the personal circumstances of why my parents got divorced, what I thought about their divorce; where I went to grammar school, high school, college, what my majors were; names, locations and ages of family members and a number of other personal topics seemingly unrelated to the Nano issue.

Was he represented by counsel at this deposition?

[Rufus]

Mythago, the deposition questions may very well have been appropriate if he was pursuing a claim based on injury to his reputation, particularly if it had a non-economic component. Moreover, I wouldn't accept the plaintiff's characterization of his own deposition at face value.