Edward Detwiler et al

Columbus, OH (December 21, 2009) — Attorney Benjamin S. Zacks and a group of attorneys and several individuals associated with his law firm, including Edward B. Detwiler, filed affidavits on Dec. 2, 2009 in a 1,236-page Motion for Summary Judgment [linked here, 32 MB] in their defamation lawsuit against Leader Technologies after Leader publicized allegations from earlier court filings that Zacks, former attorney to the company, and his cronies attempted to take over or bankrupt the company. All comments are Leader´s opinion.

The Zacks Affidavit states:

"13. All these statements are false."

Identical declarations are made by attorneys Dunn and Wittenberg as well as Steiger in their Affidavit Sections 8, 10 and 12 respectively.

The Detwiler Affidavit does not include this statement; however, these affidavits place the collective testimony of the plaintiffs in disarray. All the affidavits are contained within the Motion for Summary Judgment.

Figure: Sworn testimony in Plaintiffs´ Motion for Summary Judgment [linked here, 32 MB] in their defamation lawsuit captioned Detwiler, Zacks, Steiger, Dunn, Wittenberg et al v. Leader et al. Case No. 09CVC-05-6857 (Franklin County (Ohio) C.P.) Lawsuit [linked here] and Leader's response [linked here]

On the surface: Whose statements are false?

Ambiguous Statements & Ohio Law

To which statements are the plaintiffs referring, their affidavit statements or Leader´s and McKibben´s alleged statements? They give "statements" no special meaning in their Affidavits. Therefore, one is left to guess at the meaning.

False and ambiguous statements in court pleadings carry stiff penalties under Ohio law. Ambiguous statements are considered false statements since one or the other of the possible interpretations will be false.[1]

Digging deeper: "Plain and ordinary meaning"

[Affidavit] statements are false

Ohio law directs that sworn statements are to be interpreted according to their "plain and ordinary meaning." The courts are not permitted to imbue meaning into a statement that may or may not have been in the affiant´s mind. The courts must interpret the words on the page according to their plain and ordinary meaning. Because Zacks fails to define whose statements are false in Section 12, any use of the word "statements" in his testimony is ambiguous. Affidavit declarations are also called "statements (of the affiant)".

Typographical Error?

If one were inclined to give the benefit of the doubt and assume a typographical error, the most logical typo would be that the affiants intended "All these statements are false" to be included as the last sentence of the previous paragraph. However, such an interpretation contradicts the rules of interpretation for the following reasons:

1. It modifies the intrinsic meaning of a simple sentence "All these statements are false" stated four times; three times by attorneys who must be presumed to know better;
2. It imposes capricious, extrinsic interpretations upon a clearly presented statement (i.e., its placement anywhere tends to reverse or render ambiguous the meaning of the preceding statements) and one can never know if the new placement was in the mind of the affiant;
3. Any alternative placement of the statement only creates different ambiguities and falsities; and
4. Ambiguous statements are not exempt from the false statements penalty under Ohio law.[2]

"All these statements are false" makes the affidavits ambiguous and nonsensical; whether the sentence is left in its current location or moved elsewhere. Even using the most favorable interpretation possible, placement of the statement anywhere in the declaration at the end of a paragraph reverses the meaning of the statements in that paragraph or renders its meaning ambiguous, thus causing at least the statements in that paragraph to contradict affiant's other testimony. Therefore, one is left to conclude that the statement "All these statements are false" must stay where it is in the affidavits and be interpreted according to its plain and ordinary meaning.

No Defense for Sloppy

The burden of proof is on the plaintiffs to prove their case for defamation. They must prove beyond a reasonable doubt that there is no genuine issue of fact. "Conclusory statements" are not acceptable. For example, "I know he did it" and "She defamed me and knew her statements were false" are not enough. Facts are now required to prove the truth of these allegations.

The plaintiffs´ affidavits state over and over that the defendants defamed them with information that the defendants knew to be false. The plaintiffs´ affidavits also state that "All these statements are false." While typographical errors are generally excused in legal briefs, wholesale changes of meaning, or the wholesale rendering of the writing to an ambiguous state due to sloppy legal writing are not. When sloppy legal writing leads to contradictory or ambiguous statements, the court has no requirement or authority to fix the mistakes. The statements must be interpreted by their plain and ordinary meaning. There is no defense for sloppiness. Even more proof of why Leader decided a change of legal counsel was needed.

Plaintiffs´ "All these statements are false" affidavits, when read according to their plain and ordinary meaning, present an array of conflicting statements that say that McKibben did A; McKibben did not do A; McKibben may or may not have done A; McKibben did B; McKibben did not do B; McKibben may or may not have done B; and so on. Such contradictory assertions render the MSJ internally contradictory and nonsensical.

For motions for summary judgment to be granted there must be no issues of material fact. When such issues exist, the interpretation of those statements must be read in a manner most favorable to Leader.[3]

False and ambiguous statements in an affidavit, especially affidavits submitted by attorneys, carry stiff penalties. Under Ohio law ambiguous statements are considered false statements since one or other of the statements will be false.[4] Additionally, Ohio attorneys are forbidden from making false and misleading statements.[5]

Zacks et al have submitted false and/or ambiguous affidavits that render their Motion for Summary Judgment nonsensical and place an even bigger question mark over their veracity.

* * *

Footnotes

[1] Perjury. Ohio Revised Code 2921.11.

[2] Ibid.

[3] Summary Judgment. Ohio Rules of Civil Procedure §56(C).

[4] Op.cit.

[5] Ohio Rules of Professional Conduct Rule 2.3 (Evaluation for Use by Third Persons); Rule 3.3 (Candor Toward The Tribunal); Rule 3.4 (Fairness to Opposing Party and Counsel); 4.1 (Truthfulness In Statements To Others); Rule 8.1 (Bar Admission and Disciplinary Matters); Rule 8.2 (Judicial Officials); Ohio Rules of Civil Procedure, Rule 11; Ohio Rules of Evidence, Rule 410.

* * *

17-Dec-09 – Detwiler letters to Ohio Dept. of Development added (No. 18).
18-Dec-09 – Leader appeal of Steiger partial summary judgment added (No. 4).

Columbus, Ohio (Dec 16, 2009) — Contrary to Plaintiffs´ sworn testimony in their defamation lawsuit against Leader Technologies that "Mr. Zacks did not attempt to take over the company" (MSJ, page 8, para. 2), former Leader programmer Betsy Foote wrote about her knowledge of the takeover and bankruptcy strategies advocated by Zacks in her April 6, 2005 email to Detwiler (full email [linked here]). All comments are Leader´s opinion:

"Ed, I really hope you are successful in your endeavor to have MM [presumably Mike McKibben] caught in his lies. If nothing else we might see the liquidation of the company if that comes to pass.

I am not sure whether Ben, et. al., [sic] are still interested in taking over the company and pursue [sic] sales of existing products… Could someone please comment on that?" (emphasis added)

This email was provided in 2005 to Leader as part of the discovery information in the Rampelt (and Detwiler) v. Leader lawsuit. Retiree Detwiler raises the possibility of filing this lawsuit in his "Hi all" message to which Foote was responding (her comments are cited above). The Rampelt lawsuit itself was filed on May 2, 2005, less than four weeks after Foote responded to Detwiler´s email. Of note in Detwiler´s email are his characterizations of his behavior as "one small step for the good guys" and "The chess game continues!"

Nine months earlier, on July 9, 2004, Detwiler had written Foote revealing their ongoing plans and attempting to recruit Foote to the cause (full email [linked here]). The following are pertinent excerpts from Detwiler´s email to Foote:

"… you [Foote] seem to be the informal leader [presumably of the former employees]

Since no one responded to my update about pursuing legal action, I thought maybe I had done something that may have caused concern. My intention is to do nothing that would harm any of our ´group´ (who ever that may be at any given time, but my definition would be generally those who participated with Jerry Scott discussions)…

Filed lawsuits are public knowledge and must be disclosed to new investors IF they are significant compared to overall assets of the corporation. Enough unsecured creditors can force the company into involuntary bankruptcy whereby the company can be reorganized at the discretion of the creditors or just shut down.[1]

You have a choice to pursue legal action with other W2 employees or… independently… Advantages to the group approach would be…

I am using a lawyer by the name of Tim Miller who is with Isaac, Brant [sic], Ledman, & Teetor, LLP."[2]

One might wonder why one of the conspirators would risk exposure by discussing the take-over attempt in writing. Subsequent discovery in the defamation lawsuit will shed more light on this question, but Leader believes Zacks et al were in search of unsecured creditors who would join their new idea to drive the cash-strapped company into liquidation by filing dubious lawsuits.

The fact is that on September 4, 2002, before the company had missed any payrolls, Mike McKibben convened an "all hands" meeting to discuss how the dotcom crash was affecting fund raising. He informed all personnel that the next paycheck was the last he could guarantee. He told the personnel that he would understand if they wanted to start looking around for different jobs, and said that Leader would continue funding efforts and pay as the company was able, but that if personnel chose to stay, it would be at their own risk. The Plaintiffs conspicuously avoid telling that part of Leader´s entrepreneurial story.

Every Leader investor remembers McKibben telling them to take the long view or don´t invest. Every investor also remembers McKibben´s prerequisite regarding voting control. Zacks, Detwiler, Steiger and Dunn agreed and signed on, changed their minds, then tried to mount a takeover. When the takeover failed, they concocted the involuntary bankruptcy strategy to try to seize the assets. After being informed of the likelihood of missing payroll, employees continued to work at Leader at their own risk, as did consultants like Detwiler. However, those facts did not fit the spin perpetrated by Zacks and his cronies (Leader Answer to Defamation Complaint, page 1).

All the while, Leader was supporting the country´s counter-terrorism efforts, saving lives after Hurricane Katrina, acquiring patents, working to grow sales, aiding in various homeland security efforts, and supporting schools and universities with health and safety alerting. (Click here for Leader® Newsroom.)

Plaintiffs say they did not try to take over the company.

Plaintiffs´ own documents prove they are lying.

* * *

Footnotes:

[1] Detwiler is a retired mainframe computer bank executive. This business discussion of the intricacies of securities disclosure and bankruptcy processes (which aren´t nearly so simple and without protections from such harassment) is well outside his competency, but may have impressed Ms. Foote, who at the time was a talented young programmer who had no business experience.

[2] Tim[othy E.] Miller of Issac Brandt Ledman & Teetor LLP also became the lawyer for E. Esther Barmack, an Illinois resident with no known ties to Ohio other than her Leader investments, the third of the dubious lawsuits, filed on Feb. 2, 2006. Plaintiffs claim "… she selected the law firm of Isaac Brandt to represent her with no suggestion by Plaintiffs." (MSJ, page 11, para. 1.)

Would you tolerate your attorney doing this?
(Neither do we.)

Last updated 12/15/2009 5:42 PM

Columbus, Ohio (December 13, 2009) — The former attorneys for Leader Technologies submitted individual sworn affidavits in their 1,236-page defamation lawsuit Motion for Summary Judgment (MSJ) on December 2, 2009, which Leader has now had an opportunity to review. All commentary is Leader's opinion.

Legal experts consulted are mystified by the MSJ´s sheer volume and timing. MSJ´s at this stage are normally filed by the defendants – the ones being sued – not by the plaintiffs. Leader believes the volume represents an attempt to overcome lack of evidence with volume. In any event, Zacks et al demanded a jury trial. Filing a summary judgment before discovery in their lawsuit raises serious Rules questions. Defamation cases swing on the facts (or lack thereof) surrounding the alleged defamation. The fact-finding, including depositions and subpoenaed testimony, has yet to occur. Here´s just one example of the lack of facts in the plaintiffs´ Affidavits (Aff.):

"McKibben regularly posts false statements about the Plaintiffs that defame them, and specifically me and/or place them or me, in a false light, knowing the statements to be untrue or with reckless disregard to their truth or falsity." (Zacks Aff. § 8, Dunn Aff. § 4, Steiger § 7, Detwiler § 4).

These are identical statements in the Zacks Dunn, Detwiler, and Steiger Affidavits and beg the question: Why are they making exactly the same word-for-word complaints? Since they are making identical complaints, is it not appropriate to extrapolate that they acted in concert, as McKibben and Leader allege? Otherwise, identical allegations are nonsensical. Their affidavits include numerous identical statements.

Plaintiffs say repeatedly that Leader and McKibben made false statements and knew they were false. However, these assertions are conclusory and unsupported. MSJ´s must prove "beyond reasonable doubt" that no disputes of fact exist before they can be granted.[1] The discovery to determine the facts has just begun in this case.[2] A repeatedly copied accusation of wrongdoing and self-serving personal affidavits are conclusory assertions and not permitted in a motion for summary judgment (see Footnote 1). Such legal writing as this is indicative of the plaintiffs' level of legal care and illustrates why Leader sought new counsel.

"Mr. Zacks did not attempt a takeover of the Company" (MSJ, page 8, para. 2)

Plaintiffs paint a picture of benevolence, veracity and righteous indignation. They represent themselves as holding only the shareholder's highest interests and say repeatedly that they did not conspire to take over the company. Detwiler Aff. § 2 ("My reputation for professionalism, integrity, and honesty is impeccable" ), 3, 19, 20, 41; Zacks Aff. § 2, 3, 4, 6 ("I attempted to assist..." and "I was drawn back in" and "suggested all debts be paid" and "commiserate with other shareholders" ), 15 ("forced to submit malpractice coverage claims" ), 16 ("[Leader and McKibben] injure[d] me" and "alienated from the community" ), 17 ("wholeheartedly encouraged McKibben to make the company successful" ); Steiger Aff. § 3 ("Mr. Zacks… act[ed] solely as a scribe" and "[I] contribute[d]… to move the company forward" ), 4 ("I tried to get McKibben to honor his commitments" and "I was forced to hire collections counsel" ), 9, 13 ("I have been damaged" ), 14 ("ridiculed in my occupation" ), 15; Dunn Aff. § 3, 4, 8, ("All these statements are false" ), 11 ("shamed and ridiculed in my profession" ), 12; Wittenberg Aff. § 2 ("protecting my reputation from slanderous attacks" ), 8 ("nothing I have done… is even remotely unethical" ), 12 ("lies spread by McKibben" ), 13).

Plaintiffs´ characterizations of due care and innocence stand in stark contrast to other elements of their testimony, which we believe anyone of ordinary skill in business knows are highly disruptive activities. For example:

1. Cancelling meetings whose purpose was to resolve differences, and instead filing this defamation lawsuit (e.g., Wittenberg Email, May 7, 2009; see blog citation and evidence below);
2. Chronically failing to bring concerns to the Leader Board of Directors (e.g., Detwiler Aff. § 19, 27, 28, 32);
3. Encouraging former programmer employees, including Betsy Foote, to file lawsuits; telegraphing a new strategy to drive Leader into involuntary bankruptcy by organizing three creditors — three dubious lawsuits were forthcoming over the next 18 months (e.g., Detwiler Aff. § 20, 22, 30, 36 [asserts bankruptcy statements untrue, PDF p. 52]; click here to read July 9, 2004 Detwiler email to Betsy Foote [not produced in discovery by the plaintiffs in this case, but produced by Rampelt/Detwiler in their lawsuit]);
4. Misleading representations of truthfulness based upon legal procedural errors and not on the merits (e.g., Steiger Aff. §
   8, 9; Leader appeal of partial summary judgment);
5. Harassing Leader and McKibben with "$1.5MM" damages number concocted by attorney Wittenberg "appropriate to punish" (e.g., Steiger Answers to Interrogatories §10, page 6, May 8, 2006, linked here);
6. Filing lawsuits with dubious claims (e.g., MSJ, page 12, para. 2 ; Detwiler Aff. § 29; Def. St. No. 89, page 51; Def. St. Nos. 119, 120, 121, 122, 123, 124, 125, 126, 127 & 128, pages 59-62; MSJ, pages 678-681; Discovery Abuse - Institute for Legal Reform);
7. Refusing to be bought out after making assertions that the company is "worthless" (e.g., Steiger Answers to Interrogatories §4, page 3, May 8, 2006, linked here);
8. Interfering in the SpartaCom business transaction (e.g., Zacks Aff. § 2; Steiger Aff. § 4,5; Dunn Aff. § 1; MSJ page 994,1001, — pages 1004-1005 — [see Zacks Aug. 6, 2003 email, page 1004, para. 2 – "Objectives... (1) Stopping the SpartaCom deal" — (linked here)]; MSJ, pages 640-641);
9. Disparaging management to third parties as current and former legal counsel. (e.g., Zacks Aff. § 6; MSJ page 973-974, page 979-983; see also "Interfering in the SpartaCom business transaction"; False Light St. No. 5, para. 1);
10. Breaching attorney-client privilege. Evidence of such breaches are included in MSJ, pages 1004-1010 and 1016, then in a different location, pages 637-641 show the related Zacks email and attachment where he breaches Leader´s and McKibben´s attorney-client privilege. (MSJ, pages 637-639; Def. St. No. 22, para. 2; MSJ, page 7);
11. Zacks states multiple times not to be subject to attorney-client privilege professional rules for present and former clients (e.g., MSJ, Def. St. No. 5, 20, 45, 92, 93, 94, 129, 130, 131, 132, 133, 134 & 135; Zacks Aff. § 11,12; False Light St. 5).

    Neither Leader or McKibben have ever agreed to absolve Zacks et al of their fiduciary or professional duties. Such an assertion runs counter to everything Leader and McKibben believe and stand for regarding professional ethics, fiduciary duty and accountability. In fact, the Business Judgment Rule duties of diligence, loyalty, obedience (to laws and organizing documents), accountability, disinterestedness, due care, good faith and non-abuse of discretion were specifically signed on to by Zacks, Steiger and Detwiler. Click here to read Detwiler's Business Judgment Rule commitments May 23, 2000. (Such highly relevant ethics agreements were noticeably absent from Plaintiffs´ 1,236-page MSJ while some 130-pages of Clerk of Court Civil Case Detail were included.);

12. Acting without Board of Directors approval. Relying upon a secretly agreed absolution by a newly-appointed Leader officer acting without Board authority or knowledge (MSJ, p. 1039-1040 — Jerry Scott to Judson Scheaf [Zacks et al's attorney] "I will never discuss the contents of the call without your approval" (emphasis added); MSJ, p. 1042; (click here to read Scott-Scheaf Oct. 28, 2003 secret agreement just provided by plaintiffs and seen by Leader and McKibben for the first time);
13. Failing to comply with the governance and ethical commitments. (MSJ, pages 696-705); Director Services Agreement - Business Judgment Rule, see Detwiler affirmation [linked here])
14. Misappropriating trade secrets, even in the MSJ filing (MSJ, pages 950-1066);
15. Making false statements to Leader (See Wittenberg May 30, 2009 Email [linked here] claiming no previous association with Zacks, then see Wittenberg May 27, 2005 Letter [linked here] representing Zacks four years earlier.);
16. Circulating misleading legal concepts among unsuspecting third parties like "alter ego" and "minority shareholder rights" and "piercing the corporate veil", thus damning Leader and McKibben by innuendo using legal jargon and form over substance. Oh. R. Prof. Conduct. Responsibilities [5]; False Light St. No. 5; Def. Stat. No. 3, 58, 59, 60, 61, 92, 93, 94; MSJ, Conclusion, para.1; MSJ, page 475);
17. Inciting former employees and shareholders to assert dubious claims (Detwiler Aff. § 22,24,26; MSJ, pages 90-91; MSJ, pages 1056-1058);
18. Writing disruptive letters to government agencies (Detwiler Aff. § 28, 31, 32). Detwiler conveniently omits over twenty (20) email and letter exchanges with Ohio Department of Development officials. (Taken down prior to this lawsuit. Example of Detwiler documents linked here) Additional Detwiler documents linked below:

    2005-01-17 — 2006-01-13 — 2006-05-11 — 2006-09-22 — 2006-10-02 — 2006-11-08 — 2006-11-15 — 2006-12-04 — 2007-01-03 — 2007-02-12 — 2007-05-25 — 2007-08-01 — 2007-11-28 — 2007-12-19 — 2008-01-30 — 2008-02-20 — 2008-06-04 — Leader and ODOD eventually settled after The American Thinker and other national watchdog organizations picked up the story;

19. Misleading shareholders with false numbers and unauthorized use of shareholder names from Plaintiffs' position of privilege. (Def. St. No. 38);
20. Misleading courts. For example, McKibben has never expressed an opinion in any form whatsoever about U.S. Fed. District Court Judge Frost. Judges are public officials and subject to public scrutiny by virtue of their positions of public trust in any event. (Def. St. No.39, para. 7);
21. Making unfounded statements with no knowledge of the facts (Def. St. No. 42). The Ohio Department of Commerce conducted an investigation after receiving Detwiler´s complaints and found them meritless (Dept. of Commerce Email, July 12, 2007 [linked here] – Detwiler was identified as the complainant);
22. Stretching the veracity of Zacks´ testimony past the breaking point in asserting that his and Detwiler's actions have been unconnected (Def. St. Nos. 40-43);
23. Refusing to admit Plaintiffs´ Ohio Department of Development criticisms of Leader were unfounded following Leader´s discovery and Q1 2009 publication of unilateral alterations of its financing application by ODOD officials on about April 23, 2003 (linked here). These changes were never communicated to Leader, yet used in reports to the Ohio legislature a year later; and
24. Including nonsensical discovery documents in the MSJ, like a current lease dispute with Leaders´ former landlord; irrelevant to this present case. (MSJ, pages 564-605).

Leader asserts that Zacks et al´s disruptive actions highlighted above were self-fulfilling prophecies. Namely, create a problem, complain about it, attack McKibben for not fixing it, offer to be the white knight to fix it, stir up trouble to ensure that the "problem" will not go away, file dubious lawsuits in support of your concocted causes, then use your knowlege of the weaknesses of the court system to string out expensive lawsuits until Leader´s lawyers slip up or get litigation fatigue (Zacks Aff. § 6,10; Detwiler Aff. § 14, 15, 19, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36; Steiger Aff. § 4,5; Dunn Aff. § 5; Wittenberg Aff. § 5, 6, 7).

Plaintiff´s MSJ venom is focused on Leader´s Founder and Chairman Michael T. McKibben, and yet they have also sued a dozen others, most of whom do not even know them. Attorneys are not permitted to sue people merely to harass them (Oh. R. Prof. Conduct. Responsibilities [5).

"Stop interfering in Leader´s business"
(Steiger Aff. § 8)

Steiger´s Affidavit itself clearly identifies Leader´s sole purpose in resisting the Plaintiffs actions: "Stop interfering in Leader´s business". (Steiger Aff. § 8) This unambiguous statement by Leader stands in stark contrast to Plaintiffs´ accusations, largely centered on McKibben, that he has engaged in a campaign to discredit the Plaintiffs. The fact is that McKibben and Leader have no interest in the Plaintiffs and simply wish them to stop their dubious lawsuits and legal activity and leave the company alone to pursue business instead of consuming pointless hours resisiting plaintiffs´ actions. (Detwiler stated to Jeremy Float earlier in 2009 that his intention was to "punish Leader for what they have done", link affidavit here, contrary to Plaintiff's numerous assertions of constructive intent in the MSJ - linked here).

Plaintiffs´ testimony denying attempts
to take over the company

Plaintiffs sworn statements in their Motion for Summary Judgment regarding Leader´s allegations of having been involved in attempts to take over the company as its former legal counsels and fiduciaries include the following.

• "there was never any conspiracy, business interference, or attempt to ´take over the company.´" (MSJ, page 20, para. 2)
• "…the minority stockholders could not and did not take over the Company and had no ambition to do so." (MSJ page 7, para. 1)
• "Zacks never desired to ´take over´ the company´ [sic] and essentially sat on the sidelines for over two years before he was made the subject matter of the McKibben conspiracy theory." (MSJ. Def. St. 37, page 22, para. 1)
• "Mr. Zacks did not attempt a takeover of the Company"
  (MSJ, page 8, para. 2)
• "I have been damaged … for [being accused of] allegedly doing these things and trying to take over the company." Steiger implies he did not participate in a takeover attempt, but does not say so explicitly. (Steiger Aff. § 13)
• "I was not, never was, and still am not, any part of any conspiracy to put the company out of business or take over the company." (Detwiler Aff. § 29)
• "None of the Plaintiffs desire to "take over the company".
  (Def. Stat. No. 3, pages 2-3)

 

Stay tuned.

The MSJ is 1,236 pages long. The citations initially gleaned from it and shown above may contain inadvertent citation errors and will be corrected as they are identified, if any.

Footnotes:

[1] "A trial court may not enter a summary judgment if it appears a material fact is genuinely disputed. The party moving for summary judgment bears the initial burden of informing the trial court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. The moving party may not make a conclusory assertion that the non-moving party has no evidence to prove its case. The moving party must specifically point to some evidence which demonstrates the non-moving party cannot support its claim." Mason v. Allstate Ins. Co., 2009-Ohio-6204.

[2] "On summary judgment the moving party has the burden to establish the absence of a genuine, that is, disputed, issue as to any material fact. On summary judgment the court does not decide the issue of fact; it decides whether there is a genuine issue of fact. A summary judgment should not be granted unless the moving party demonstrates a right to a judgment with such clarity as to leave no room for controversy." Muggli, Christine Bremer. Motion For Summary Judgment — A Change is in the Air. Wisconsin Bar Association. Last accessed December 13, 2009.

Columbus, Ohio (December 12, 2009) — Eric J. Wittenberg, Esq., and Adam J. Steiger, Edward B. Detwiler's co-plaintiffs in this case, cancelled a resolution meeting with Leader representatives the morning of May 8, 2009, twenty (20) days before filing their defamation lawsuit on May 28, 2009.

Figure: Portions of Attorney Eric J. Wittenberg's email to James Sobwick, Chief Operating Officer of Leader Technologies, cancelling a scheduled meeting on May 8, 2009 to discuss resolution of differences with his client Adam J. Steiger. Click here to read the complete message.

Leader had requested the meeting to discuss its differences with Steiger and Zacks (both are former Leader fiduciaries and Zacks the former corporate legal counsel) et al. Wittenberg and Steiger initially agreed to the meeting, then cancelled it the morning of the meeting; threatening to "call the police" if Leader representatives came anyway. Wittenberg, Steiger, Zacks, Dunn and Detwiler then republished the allegedly defamatory blog content in their lawsuit on May 28, 2009 of their own volition. Their lawsuit is linked below.

Lest readers wonder if the publishing of Wittenberg's email is defamatory, one need only know that "Proof of the truth thereof shall be a complete defense" (Click here for Ohio Revised Code §2739.02 regarding defenses against accusations of defamation). Free speech is a First Amendment right in America. In a lawful manner, Wittenberg is free to say what he thinks as is Leader. Wittenberg wrote this email and made the threat, Leader did not. Indeed, Wittenberg wrote on free speech in Blogging the Civil War: "Blogging provides what Teddy Roosevelt described as a bully pulpit, an opportunity to climb the soapbox and proudly state one's opinions in the free speech market known as the Internet." (Civil War Preservation Trust. Date unknown. Last accessed December 12, 2009)

Click here to read the full Wittenberg May 8, 2009 meeting cancellation message to Leader.

Columbus, Ohio (Dec. 10, 2009) - The defamation lawsuit filed by Edward B. Detwiler, Benjamin S. Zacks, Esq., and Zacks' law firm Zacks Law Group LLC against Leader Technologies (www.leader.com) includes suing nine (9) individuals who have never met them. Leader alleges in various court filings that these plaintiffs, led by Benjamin Zacks, the former attorney for the company, and his law firm, Zacks Law Group LLC, have breached attorney-client privilege and used that knowledge to harass the company by various means, including filing frivolous lawsuits and abuse of the court system.

In 2001 Detwiler's attorney Zacks attended a conference with Leader Founder and Chairman, Michael T. McKibben, titled "Trade Secret Protection and Enforcement of Intellectual Property Rights" in Washington D.C. sponsored the The National Intellectual Property Law Institute where Maynard C. Anderson, a member of the Leader Board of Directors whom Zacks has sued, spoke on the subject of "Electronic Information and the Challenges of Secrecy". Mr. Anderson is Former Acting Deputy Under Secretary for Security Policy, United States Department of Defense.

Other prominent Leader directors that Detwiler has sued (and has never met) include John Mott, former President of EDS Korea and former EDS Director of M&A worldwide, and Riad Yammine, former President of Speedway SuperAmerica and Director Marathon Oil Company. About a month before filing their lawsuit, Detwiler's co-plaintiff Adam J. Steiger ordered his attorney Eric J. Wittenberg (also Zacks' attorney in past matters) to cancel a meeting with Leader representatives to discuss their differences, the morning of the meeting. Wittenberg even threatened to call the police if the Leader representatives appeared at his doorstep.

More details on this lawsuit below.