Last week a friend of mine named Joel Hodgell asked me to write a declaration as an expert witness in his lawsuit against a spammer. The spammer had hired his own expert witness, Larry G. Johnson, who wrote a declaration saying that the only way to determine the “authenticity and source” of the e-mails Joel was suing over, was to get a mirror copy of Joel’s hard drive. Since these were e-mails that Joel received at Hotmail and Yahoo accounts and which never even touched his hard drive, naturally he figured this claim was a stalling tactic by the spammer and asked me to write a declaration pointing out, basically, how mind-blowingly stupid it was.

So I agreed and read the declaration from the spammer’s “expert witness.” After reading it, it outraged me so much that I asked Joel and his lawyer if I could send it to my press list, just as an example of what people try to get away with in court.

At first, when Joel told me that the “expert witness” Larry Johnson said in his declaration that the only way to determine the source of the e-mails was to get a mirror of Joel’s hard drive, I gave Johnson the benefit of the doubt and figured, maybe he thought these were e-mails downloaded in a normal e-mail client like Eudora, not mails stored in a Yahoo! or Hotmail account. (Even in that case, Johnson’s statement still would have been wrong - you would just need copies of the e-mails with full headers, not the whole hard drive. And Joel had already expressed willingness to send the spammer copies of all the messages, with full headers, that he was suing over, so there was nothing else the spammer needed anyway.) Then I read Johnson’s declaration and it says that he examined at least one of the spams, so he knew they were being sent to Web-based accounts, and he referred specifically to the messages being stored on, “in this case, MSN or Yahoo! email servers.”

So, the spammer’s “expert witness” knew that the e-mails were stored in Yahoo! and Hotmail accounts, and still wrote in his declaration:

“The only way to reliably know what the emails in this case actually look like and what information they in fact contain is to view them in the computer environment in which they were generated or received, and the most cost-efficient and comprehensive way to do that is to make an easily obtained and non-destructive ‘mirror image’ or clone copy of the computer storage media on which the purported emails allegedly reside (e.g. hard drives, CDs, DVDs, floppy disks, etc.).”

Johnson’s declaration is here in pages 18 to 29 of that file. It lists his credentials: educated at Harvard, admitted to the bar and licensed to practice law in Washington, doing computer consulting for 21 years, and (really) appearing in a movie called “Easier Said” as “Sheriff Tiny.” And here he’s making a statement, under oath, that could be refuted by a reasonably computer-literate 12-year-old.

It’s old news that you can hire an expert witness to say anything you want them to say, but I think in most cases involving medical matters or complicated technology, it might not be obvious to the judge, or the public, that an expert witness is trying to get away with b.s. that they couldn’t possibly believe to be true. This is an unusual case where anyone with basic knowledge of computers could see through what the witness is saying.

So I thought it was too outrageous not to tell anyone. Not just that the witness said it. Not just that the witness got paid for it. (Actually, that doesn’t make me too mad, because it was the spammer who paid him, so it was just transferring money from a full-time societal leech to someone who is usually gainfully employed and merely amoral.) But outrageous that he’ll get away with it, and that the judge will, in the best case, probably just dismiss the testimony, instead of fining him or putting him in jail, which is what is supposed to happen in theory if someone gets caught lying under oath.

Joel and his lawyer confirmed they had no problem with me posting this and agreed it shouldn’t affect my credibility in the case - if anything, it would enhance it, since I’m willing to take the statements in my declaration and shout them from the rooftops. Larry Johnson, on the other hand - that’s Larry G. Johnson, president of E-DataEvidence.com, by the way - probably hopes that none of his clients ever come across his declaration, at least not the computer-literate ones.

[Bennett Haselton of Peacefire.org]

Tags: spam lawsuit, joel hodgell, larry g. johnson, expert witness, lying under oath, e-dataevidence.com