Law Firm Emails Sought in Ashley Madison Lawsuit

Did the extramarital affairs website, Ashley Madison, defraud consumers by creating “fembots”? And if so, what did its outside counsel at Barnes & Thornburg say about it?

Those questions, among others, are central to an onslaught of litigation that’s facing the company in Missouri federal court, according to court filings.

Plaintiffs are currently seeking access to emails between the company that owns Ashley Madison, Avid Life Media, Inc., its general counsel and lawyers at Barnes & Thornburg, saying the communication holds key evidence that the company duped users with fake female profiles, failed to protect their personal information, among other claims.

The case stems from last year’s data breach on the Ashley Madison site, a networking platform for people who want to have an affair. A group calling themselves “The Impact Team” revealed the personal identities of the site’s users, first released via BitTorrent.

Here’s the gist of claims from dozens of plaintiffs against Avid Media:

Plaintiffs in these actions allege... that Avid failed to adequately secure their personal and financial information; marketed a “Full Delete Removal” service that did not, in fact, purge user account information from the Ashley Madison database; and made extensive use of artificial intelligence “bots” and other mechanisms to mimic fake users (specifically, female users) on the Ashley Madison website in order to induce actual (predominantly male) users to make purchases.

The recent fight over attorney emails was earlier reported in The National Law Journal , which said that the emails could bolster plaintiffs’ case in a consolidated complaint due June 3.

Avid Life Media is fighting the motion, saying that the documents are privileged, according to court documents. Plaintiffs argued the emails should be part of court record because of the crime-fraud exception, which lifts attorney-client confidentiality in cases of fraud.

The plaintiffs also pointed to the fact that some of the documents have been reported on in the media:

In the articles, the journalists reviewed the leaked documents and describe the communications between ALM and B&T regarding methods of hiding the fake female profiles from Ashley Madison Members. The evidence is relevant because the articles discuss how Defendants worked together to commit fraud against Ashley Madison Members. The articles were lawfully obtained by Plaintiffs and, in fact, remain available to anyone with access to the Internet.

In one story last September on the website Gizmodo, writer Annalee Newitz excerpted from emails between Leslie Weiss, a partner at Barnes & Thornburg, and Ashley Madison CEO Noel Biderman, that showed them working on a disclosure around the fake women profiles.

A call placed with Weiss was returned by her attorney, Dale C. Doerhoff at Cook, Vetter, Doerhoff & Landwehr, P.C.

“As a matter of policy, we do not publicly discuss active litigation, and it would be particularly inappropriate to speculate about a consolidated complaint that has not been filed,” said Doerhoff by email.

Plaintiffs attorney John Driscoll, meanwhile, pointed to the court filings and declined to comment further.

A spokeswoman for Avid’s outside counsel, Paul, Weiss, Rifkind, Wharton & Garrison, declined comment.