The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Since late 2016, I've been blogging about various fraudulent or otherwise suspect attempts to try to get material deindexed by Google, or removed by hosting companies. (See these posts, and also this forthcoming Utah Law Review article.) Many companies will deindex or remove material if they see a court order—even one not addressed to them—that finds the material to be libelous or otherwise illegal (whether criminal, tortious, or infringing some property right). But that has led some people to submit, for instance, forged court orders, hoping that the recipients won't check them.
The State Bar of Nevada has filed a complaint (State Bar v. Michaelides) alleging one such forgery was actually arranged by a lawyer; here are the allegations:
1. Complainant, State Bar of Nevada, alleges that the Respondent, Thomas C. Michaelides, … is currently an active member of the State Bar of Nevada ….
4. Chaker was unhappy with Respondent's representation [of Chaker in a child custody mater]. As a result, in or about 2018, Chaker posted negative online reviews about Respondent.
5. On August 7, 2018, Respondent … [sued] Chaker for claims of defamation, business disparagement, civil conspiracy, and injunctive relief.
6. Respondent obtained permission from the Court to serve Chaker via publication.
7. On November 19, 2018, Respondent filed a Notice of Entry of the Default.
8. Thereafter on May 28, 2019, Respondent filed an Application for Entry of Default Judgment.
The entry of default doesn't by itself create a judgment against the defendant; it takes an application to enter default judgment, at which point the defendant will often appear and argue that the default should be side, for instance on the grounds that he wasn't properly served.
9. At some point Chaker became aware of the case and retained counsel to set aside the default.
10. A Motion to Set Aside Default was filed on January 28, 2020, by Chaker's attorney.
11. According to the court docket, nothing was filed after the Application and before the Motion to Set Aside Default, and no hearing on the Application was ever held.
12. On or about February 27, 2020, Respondent, or his agent sent a falsified court Order to Google in an attempt to have Google remove the negative online reviews.
From the Lumen Database (which archives deindexing requests sent to Google), it appears that this was the falsified court order, and the takedown request was:
SENDER: Peter Novak …
RECIPIENT: Google LLC …
Sent on February 27, 2020 …
Explanation of Court Order
Court Further Findings
The Ordered, Adjudged and Decreed Section …
Back to the Bar's Complaint:
14. [Chaker has alleged] that on February 27, 2020, Respondent's paralegal, Pete Novak, emailed him a falsified default judgment directing that he remove the negative online reviews about Respondent.
15. In communication with the State Bar, Respondent admitted that he or his agent, Pete Novak, had sent the default judgment to Chaker in hopes that he would agree to a compromise.
16. Supporting his claim that the default judgment was falsified, Chaker noted that:
a. No default judgment was reflected on the Court's docket;
b. The file stamp on the default judgment is for the exact same date and time as the file stamp on the May 28, 2019, Application;
c. The file stamp on the default judgment appears to have been copied and pasted from the Application, as you can see an errant pleading paper line that was not deleted;
d. The May 28, 2019, date file-stamped on the default judgment makes no sense given that the date the document was purportedly executed was May 30, 2019; and
e. The signature of Judge Crockett on the default judgment appears to have been copied from the Order Granting Motion for Publication filed September 19, 2019….
18. At [a] hearing on April 2, 2020, Respondent represented to the Court that his goal in the case was to get a judgment to take to Google, but the judgment he received was not specific enough for Google to remove the posts….
The bar alleges that Respondent violated the rules of professional responsibility require candor toward the tribunal, fairness to the opposing party and counsel, and truthfulness in statements to others:
20. Respondent represented to … a court that his goal was to get a judgment to take to Google but failed to inform the court that he had already sent Google a falsified order….
25. Respondent improperly sent a falsified default judgment to Darren Chaker to coerce him into removing negative online reviews about Respondent….
29. Respondent made a false statement to Google when he or his agent sent them a falsified default judgment in an attempt to have them remove the negative online reviews about him….
The heart of the lawyer's answer seems to be:
Respondent wishes to note that a former disgruntled employee is believed to have forged the document that was sent to Respondent's agent, Peter Novak. Respondent was in no way ever aware that the document in question was a forgery.