Indiana Privacy Litigation

Another post that doesn't quite fit neatly into Indiana Internet litigation or privacy law, but that intrigues me.  BusinessWeek, passing along a Tim Greene article from NetworkWorld (found here: www.networkworld.com/nwlookup.jsp), is reporting that the U.S. military has issued an essay in which it urges its expertise in defense be put to use in protecting civilian networked infrastructure, such as power grids, financial institutions, etc.  The essay from Foreign Affairs sets out the concept that our military networks are probed and scanned by outside sources millions of time a day by enemies looking for weakness and access.  The Pentagon fears that the civilian cyberstructure could also be at risk from cyber-terrorism and that the U.S. military can help by using its tools to protect those necessary networks.  

This concept imposes a sense of fear and foreboding in your friendly neighborhood technology legal counsel.  On one hand, I can recognize the importance of protecting those networks.  If Bruce Willis and Justin Long taught us nothing, it is that a "fire sale" can cripple this country (and big props to Kevin Smith for his part in that flick).  Other than our Amish citizens, we, as a people, rely so heavily on our networks that we need to protect them.  However, the idea of the government and military putting their hands into the inner workings of those civilian networks also scares the heck out of me.  There are too many "technology deciding it knows what's best for us" movies for me to not worry about increased presence of government and military in our cyberworld.  

I guess, the reality is that I have no answer to this issue, but I thought it was interesting.  Like many of the questions we see arising in the cyberlaw realm, the answer to military intrusion in your civilian networks is "how much are you willing to give up in order to be safe?"

The ACH litigation team had its first ever (as far as I'm aware) litigation retreat this weekend, and as I reminisce on our time, I am struck by the realization that to be a successful business, you have to allow your team to envision and strive for excellence with you.  This weekend we had some great discussion and "vision-casting" on the areas of privacy litigation, Indiana probate litigation, business law, Internet litigation, banking law, SaaS litigation, and several other areas where we are already working and where we can work more, and throughout the discussions, I was struck again and again by how fantastic and forward-thinking everyone on our team is.  The moral of the story to me is that you, as a business person, have surrounded yourself with excellent people.  You need to listen to them and see where they can take your company.  It doesn't matter what "position" they have in the company because everyone has ideas.  Your goal as a manager should be to foster those ideas and push them to verbalize and realize those ideas.  Otherwise, you will achieve nothing but stagnation.  However, if you allow your team to envision with you, not only will you get some great ideas, but they will also own a piece of your business' future.  They will have a stake in your game.  Allow them to participate and purposefully embrace their ideas of the company and you can't avoid great results.   

Gather 'round kids, this one is interesting.  The decision actually came out in May, 2010, and I regret that I haven't had a chance to blog on it until now, but it is still a very interesting order that should have implications to privacy litigation, and litigation in general.  In EEOC v. Simply Storage Management, LLC, Docket No. 09-CV-01223, the Southern District of Indiana was faced with the issue of discovery of social networking profiles of two individuals that claimed sexual harrassment by a supervisor.  In its discovery, the Company requested "electronic copies of  ********'s complete profile on Facebook and MySpace (including all updates, changes, or modifications to *******'s profile) and all status updates, message, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, comments, and applications (including, but not limited to "How well do you know me" and the "Naughty Application").. . . . "  The EEOC went to the Court for guidance and the Court entered an order giving general guidelines, but determining that relevant portions of the social networking profiles were discoverable.  Interestingly, the Court did not really address any privacy issues implicit in this request other than to reliance on two Canadian cases to establish that setting your profile to "private" is not a shield from discovery.   The Court went on to provide the guidance that (1) any profiles, postings, or messages and applications are fair game; (2) third-party communications to the individuals must be produced  if they place the claimants' own communications in context; (3) their photos and videos are fair game, but photos in which they are "tagged" are less likely relevant.   

This is a very interesting case because it highlights the battle that is going to rage for years to come between the American jurisprudence viewpoint of discovery and the interest in privacy of what you post on the 'Net.  "How much is too much in terms of what I post on a social networking site?" v. "If someone is posting it for everyone (or at least select everyone) to see, why can't I use it to prosecute or defend my lawsuit?"  I wish I had the answer, but I think as privacy litigation and cloud computing law continue to evolve, these questions are going to become more prevalent.

Overall, I think Magistrate Lynch took a very reasoned approach to this problem.  The issues raised in this case involve emotional distress, and the two claimants at issue both indicated that they had additional mental health traumas, above and beyond what one might "normally" expect in this type of case.  Thus, if the question is "could the information shed some light on some aspect of this litigation" (which is always the question in discovery), then I think the answer has to be "Yes, it could be relevant to address those issues."   It would be akin to a man claiming to have back pain arguing that photos of him water-skiing after the event in question aren't relevant.  The simple fact is that our mental health and where we are emotionally is often evident in what we put on our social networking sites (as an aside, I will say that this is more true for some than others.  Some people just need to stop posting things; but I digress).  The items posted that show these claimants mental states are relevant.  Now, the question of how relevant is still to be answered.  If I'm the EEOC at this trial, I'm arguing that nobody posts things like "Today I was assaulted." or "I'm really depressed today because my supervisor assaulted me".  For the most part, we sterilize (or most of us do) what we put into the 'Net.  Thus, your social network profile is not an accurate snapshot of your emotional well-being.

To me, the more interesting question raised here is what happens when cloud computing law meets American discovery rules in the head-on, no-holds barred, death match that is coming.  Things will be in the Cloud and there will be some passing relevance to an issue and then the fight will be on.  The question in those cases, which I think is a question in this case as well, but that was not addressed by Judge Lynch, is the logistics of it all.  Getting information back out of the Cloud, particularly archival information requires the cooperation of third-party entities and can be very burdensome and costly.  Discovery is not meant to burdensome or overly complicated.  Thus, we are going to be faced with issues of logistics that will need to be addressed.  On top of that you add those pesky privacy litigation issue.

 Of course, to bring this post to an actual close, this type of order is why I love these emerging legal questions that are derived from the advent and advancement of technology.  There are so many facets to these issues and they strike at the heart of what we have always considered to be the core principles of litigation.  But so long as you have parties either wanting money or wanting to avoid paying money, you will have zealous advocates turning over every stone to find the nuggets that make their case a win.  And as the legal world polices itself, you will have these debates and conflicts over what is best for the individual case and what is best for the system overall.  I think Judge Lynch's order alludes to and addresses both of those overarching concerns. 

Every once in awhile, I have the inkling to make a blog post that is not about developments in privacy litigation or technology litigation or cloud computing law or foreclosures or any of the other endless stream of ideas and legal thoughts that pass across my desk.  This is one of those times.  Because, while I think it is important for our readers to know that Mexico passed a new data privacy law or that litigation related to CAN SPAM is likely a rising field, I think it is equally important for our readers and clients to gain insight into the psyche of Alerding Castor Hewitt, LLP as it is viewed through the eyes of this humble writer.  Thus the question:  Who are Alerding Castor Hewitt, LLP.

First, I must note that I intentionally chose the plural tense in that question because, although I agree that Alerding Castor Hewitt, LLP is an entity that could be viewed as a singular, I fully believe that we are made of the people that permeate this place.  Thus, we are a plural.  Second, if what you are looking for is our resumes and the curriculum vitae of these Indiana technology counsel, you can check them out on our webpage.

Rather, I intend to discuss who we are in such a way that our readers and clients can relate to the ideals for which we stand.  We are the rogues.  We are the fighters.  We are the fixers.  We are the counselors.  To a person, the attorneys at ACH are products of years of experience.  We have all trudged through the mud of the legal profession in other locales before coming to this place.  Which, inevitably, leads to the question of "why here?" 

The answer to that simple question is that because here we can be what our clients need.  We can be entrepreneurs.  We can be fighters.  We can truly embody the idea of counselor that so many of us sought when we went to law school in the first place. 

Does that mean that I always give my clients the advise that they want to hear?  No.  My job, and the job of any great attorney, is to give the advise that is warranted in the situation.  ACH not only gives its attorneys the ability to do that, but rather encourages it.  I can honestly say that I have practiced from the biggest of big to the smallest of small, in the private sector and the public sector, and there is no place that I would rather practice law.  I have told colleagues that ask me about ACH that I practice law in a way that every attorney wants to practice when they are honest with themselves as to what they want out of their profession.

This place is filled to the brim with spirit, humor, knowledge, and skill.  And I think there are two quotes that best answer the question of Who are Alerding Castor Hewitt, LLP.  The first is from Ulysses S. Grant.  In a speech in London, Grant stated "Although a soldier by profession, I have never felt any sort of fondness for war, and I have never advocated it, except as a means of peace."  The second is from Ode by Arthur William Edgar O'Shaughnessy, but was made famous (in my opinion) by Gene Wilder in Willy Wonka and the Chocolate Factory:  "We are the music makers, And we are the dreamers of dreams."  

 

I must take a moment to open with a caveat.  The study of privacy and hence privacy law or privacy litigation is an analysis that spans centuries.  In fact, while it seems like privacy issues have only recently come to the forefront with the advent of technology, they have, in fact, been prevalent in ever major level of recorded history.  I put this point out there to help you recognize that there are books and books addressing the issues of privacy and my little foray into the issue is but a nail-scratch on the surface of a very large issue.  Nevertheless, I would be remiss in my role as an Indiana technology lawyer if I didn't delve into the issue at least from an overview perspective.  Now, onto the bigger (and better) question of "what the heck is it?".  There are, in my humble opinion, four basic approaches to this question:  (1) academically; (2) legally; (3) structurally; and (4) realistically.  I will address each approach separately.

Academic Perspective:  In the simplest of academic terms, privacy law is the method and mechanism of protecting the private matters or interests of the citizen.  This definition leads to the ultimate issue from the scholarly perspective of what is privacy.  The debate over that simple term, however, has raged for years and encompasses an extremely wide umbrella of ideas.  From a political perspective, privacy is that sphere of information that wholly belongs to the individual and is unnecessary for the overall governmental function.  Aristotle believed that there were two spheres.  The first is the public sphere and in this sphere is the information necessary to govern the polis or city-state.  The other sphere is the individual sphere in which each person has the information and matters pertinent to only themselves.  It does not impact the polis and is solely private, but must exist to ensure the welfare of the entirety.  Later, John Lock would address the issue by theorizing that the inherent state of man (the state of nature) is one in which they all have equal right to their self.  It is this act of giving up some of these rights to the greater body that leads, according to Locke, to the development of organized government. 

Anthropologically,  privacy are those matters that we keep from the community at large.  Anthropologists have found that even in social settings where there is very little physical privacy, the members of that society will act to protect their own privacy in other matters (i.e. hiding feelings, averting eyes, etc) to maintain some level of intimacy and ultimately, individuality.  And this doesn't even get into philosophically, economically, medically, or any other - ly of which we may think.  As you can see, the academic perspective is somewhat scattered, but the overarching theme is that privacy (and subsequently privacy law) is the component of self that is maintained to establish and maintain the individual.  

Legal Perspective: From the legal perspective, privacy law is the protection of information related to the person.  There are two basic types of legal perspective.  The first is the protection of private information from a constitutional perspective.  This is the basic premise behind the Fourth Amendment.  The idea that citizens are free from the government simply prying into their business is fundamental to American jurisprudence.  It is also a fundamental difference between the United States and other countries that has led to some very interesting debates related to privacy, but we'll cover that more in Part 2.  From a constitutional standpoint, privacy is the protection of the individual from the invasion of the government without a reason.  The other legal perspective is the protection of information from the tort perspective.  These are the private causes of actions that relate to the invasion of privacy and lead to the majority of the privacy litigation that we see today.  Questions such as: can my employer look at my e-mails;  can my insurance company see my health records;  can this website give my address to the cyberworld.  These questions are the bread and butter of the tort perspective.  And, frankly, are the most important to my clients.  But overall, the legal perspective of privacy is, like the academic perspective, focused on the establishment and maintenance of barriers between individuals.

Structural Perspective:  What I'm calling the structural perspective is actually the most amorphous perspective that I've made up.  It is deals with the components and subparts that make up privacy law because the parts make up the whole.  But, the components of privacy law are as widely varied as the other definitions.  There is a component for protecting information about one's health.  There is a component for protecting those activities that one engages in in their home.  There is a component for protecting the contents of one's vehicle or property.  There is a component for protecting one's personal contact information.  There is a component for protecting one's financial information.  The list goes on.  Needless to say, from a structural perspective, privacy law is the protection of that information that is necessary and pertinent to our identity, well-being, and overarching individuality.  

Realistic Perspective:   Finally, we get to the perspective that is most likely to impact our individual lives.  For the individual, privacy law realistically means those steps and actions that one must take or protect to ensure that information pertinent to your well-being is protected from dissemination to parties without legitimate interest in the information.  Whether this is monitoring against identity theft or moving to quash a subpoena that seeks information in violation of HIPAA.  These are the steps that have to be done to protect your individual information.  For the business, privacy law realistically means the steps and actions that must be undertaken to protect against the dissemination of information related to either my clients, my products, or my business perspectives.  This is important both from a regulatory approach and a litigation approach.  Both individuals and businesses need to know (a) what information is protected and (b) how to protect it.  These are the fundamental realistic questions to be answered.  

So, in conclusion, privacy law is an enigma wrapped in a riddle.  We know we need it, but aren't always a hundred percent sure what it is.  It is rooted in our mythos and theory.  It is part of the underpinnings of society, both American and human in general.  And, the more connected we get, the more important it becomes.  In Part 3, I'll take a look at some of the major legal precedents on the issues of privacy law and litigation.  Stay tuned. 
  

The United States Supreme Court (SCOTUS) has granted certiori on a case  in the privacy litigation arena that focuses on the question of whether a governmental employee has Fourth Amendment rights in the contents of an employer issued pager.  The case is City of Ontario v. Quon (www.ca9.uscourts.gov/datastore/opinions/2008/06/18/0755282.pdf).  In Quon, the Ninth Circuit made several decisions.  It first decided that a third party company that provided texting services to the City of Ontario was a Electronic Communication Provider and not a Remote Computing Provider for purposes of the Stored Communications Act ("SCA").  Given the impact on liability, I think this aspect of the opinion (which was not raised on cert) is very intriguing from a technology litigation / electronic discovery perspective.  If a text message company is a ECP and not a RCP, they are exposed to more liability.  This fact can be used as a sword or a shield in a litigation arena.

The remainder of the 9th Circuit opinion focuses on Fourth Amendment privacy rights in electronically stored information.  The point that was raised on cert is whether a governmental employer has an expectation of privacy in his information transmitted electronically from a government provided device.  This has some implications for Indiana privacy litigation as well as general licensing agreement negotiations.  Interestingly, if SCOTUS agrees with the 9th Circuit, the employee would have a reasonable expectation of privacy in the information, regardless of what state public record acts say.  Thus, I, Joe Citizen, would have more access to the information than the State itself.  This has the potential for interesting results.  Maybe the state will have to ask me to find out if their employees are responsibly using the equipment provided to them.  

Additionally, if the Court agrees with the 9th Circuit, a search that was conducted when there were less intrusive means of obtaining the information would not be reasonable.  This also creates a lot of grey area and room for courts (and litigants) to maneuver.  I think it certainly raises instant triable issues regarding whether a means was intrusive and what less intrusive means existed.  

Overall, this ruling should be fun, even if I personally think the more interesting question was not raised on cert.  (ie whether a third party provider is an ECP or a RCP under the SCA [you have to love acronyms]).  I'll be watching this one.

I know that as your friendly neighborhood Indiana technology counsel, I usually post wonderful things about privacy litigation (look to see my blog on the Supreme Court taking up a case of privacy expectation in texting) and other fun cyberspace law, but today I'm going to digress for just a bit.  Indiana Senate Bill 192 has recently been introduced by State Senator Sue Errington (D-Delaware County) and would govern how a hospital applies visitation rights in a domestic partnership situation (www.in.gov/legislative/bills/2010/IN/IN0192.1.html)  The bill is not aimed at a distinction based on sexual orientation and does a good job of defining "domestic partnership" without going to the obvious.  Further, it allows a hospital to still govern the needs of the patient and implement rules accordingly.  What it stops is arbitrary and capricious denial of access to a loved one simply because the relationship between them is not familial, marriage, or civil union.

I believe that this law is a direct result of the 2007 Court of Appeals decision of In Re the Guardianship of Patrick Atkins (www.ai.org/judiciary/opinions/pdf/06270701jgb.pdf), which is a heart-wrenching decision that I think is right under the current law, but is a wake-up call to change the law.  It is definitely worth a read.

Regardless of your opinion on same-sex relationships and the rights that they should or should not be afforded, Senate Bill 192 is a logical and reasonable approach to a heated argument.  No matter what rights are ultimately given to domestic partnerships (same-sex or otherwise), a person should have access to their loved ones when they are in the hospital.  So if you are in Indiana, I hope you'll give Bill 192 a read and if you agree with it, call your representative and say so.  If you are not in Indiana, I hope that you'll take a read of Atkins and this law and see what potential pitfalls are out there and if you are so inclined, call your representative. 

I promise to geek out next time.

A colleague of mine brought to my attention two recent federal cases in which the courts elected to deny motions to compel electronically stored information (ESI).  In Kay Beer Distributing v. Energy Brands, Inc., the Eastern District of Wisconsin determined that, among other things, Kay's request for every e-mail with their name in it was too broad.  The court also considered in its determination  the fact that Energy Brand's counsel had offered to work with Kay to do more directed keyword searching of the e-mail engine, but Kay declined. 

In my opinion, these cases are indicative of a trend that you'll see more prevalent in litigation, whether you're talking about technology litigation or run of the mill commercial litigation.  When ESI discovery came onto the scene, judges were more prone to let the parties just duke it out and allowed for more expansive discovery requests.  In my opinion, as the frequency of requests increase and judges are exposed to more and more decisions related to ESI, they are becoming more educated on technological capacity and will become less and less likely to allow for expansive discovery.  

This leads me to the actual point of this post.  For the entrepreneur, there can be significant benefits to cooperation in discovery related to ESI.  Long before I became involved with Indiana technology litigation, I was fortunate enough to participate in some large scale discovery productions that involved searches electronically stored information.  One of the pivotal points of the production involved the necessity to explain to the Court and the opposing party what they search system would and would not do.  Much to the chagrin of my boss at the time, I suggested that we allow the opposing party to have direction in their search by doing it in conjunction with us.  The Court called this an "organic search" (a term that I hated, but that ultimately stuck to what were were doing).  It involve the opposing counsel conducting the searches with us and then directing further searches based on those results.  With a limit on the time to conduct the search, we were able to minimize defense cost on the issue, appease plaintiff's counsel, and make the judge happy.  And all we, as defense attorneys, had to do was the searches that we would have had to do anyway.

My point is that with technological capabilities comes a necessity to think outside of the box.  As a business owner, you may be able to minimize your exposure and costs by simply allowing the other side into your office while you're doing their search.  As an attorney, our jobs are to make sure that the appropriate safeguards are in place to protect our client, but also must be willing to effectuate for them the best result.  Obviously, some areas of law, like privacy litigation, medical records, etc. are going to be less viable for this type of solution, but overall, there can be an upside to cooperation.  Think about it.

As an admitted technophile, I can't help but look into all the newest gizmos and gadgets.  Plus, working at an information technology law firm, I can even bill it sometimes.  Thus, I've recently begun a fascination with e-books.  Jason Wilson has  done a very interesting set of blogs looking at the use of e-books (or lack of use) for lawyers (www.jasnwilsn.com/).  Jason's viewpoint is as a counterpoint to a recent set of blogs by Professor Eugene Volokh (volokh.com/2009/10/02/the-future-of-books-related-to-the-law/).  I find this debate interesting for lawyers in general, but litigators specifically.


While I appreciate Jason's point of the importance of cloud computing and web based interfaces for lawyers, I have to admit that I personally think that e-readers are likely to have increasing presence in courtrooms around the country.  I am genuinely intrigued by the thought of turning to my e-reader to "leaf" through a treatise on privacy litigation or ASP law that I've downloaded while sitting in a courtroom.  This is particularly true when the courtroom that I'm sitting in is located in small town Indiana (or any other small town) that is still working on integrated computer systems and look at you askew when you ask about WI-fi.  Web based interfaces are extremely important to the 21st century attorney, but there are still limitations.  And if technology can allow me to carry treatises and law books that I might need before a court while still using my super sleek briefcase, I'm all for it.

For my first foray into the world of blogging, I think the important first step is to answer the standard journalism questions necessary for any good story, namely, the who, what, when, where, and why.  Sorry for the length. I promise that future blogs will be shorter.  Without further adieu, here we go . . . .

 

Who:  This one is easy because I know a lot about me.  My name is Chris Stephen and I consider myself first and foremost a litigator.  Some people in my field like to classify themselves first as attorneys and then focus into their specialty, but I start with what I love.  I enjoy the law and I immensely enjoy helping people, which are both great aspects of being an attorney, but my passion is litigation.  The constant strategy that is trial and appellate litigation is intoxicating and addictive, and I seek it out.  Secondly, I consider myself a technophile.  I enjoy learning about the new and emerging technologies and the implications that they have for our world (and more specifically for the microcosm that is the legal world).  But for more about me, please feel free to check out my bio at http://www.alerdingcastor.com/professionals/cstephen.html      

 

What:  This question is slightly more difficult to answer.  What is “technology litigation”?  To me, it is the emerging areas of litigation that focus on the interplay of technology and our world.  Globally, we are becoming evermore connected and technology is advancing at an outstanding rate.  And, as with all areas of society, as innovation advances, the legal world is left to catch up.  As the legal world transitioned from the radio to the television and from the telephone to the Internet, new laws and new legal interpretations are constantly evolving.  This evolution has been evident for some time in the transactional side of the law as newly emerging companies seize new ideas and seek to make businesses out of them. But the litigation side is still burgeoning.  This is a natural consequence of the legal framework.  You often don’t have litigation first and transactions second. The transactions come first and then we litigators argue about where the transaction falls apart, and in doing so, law is created.  But too often in the law, people are trying to use 20^th (or sometimes 19^th) century laws to deal with 21^st century problems.  So my goal with this blog is to bring to light the new and emerging areas of law (and potential litigation minefields) that surround the interplay of technology in our world.  This encompasses information technology, e-commerce, privacy, data ownership, cyberlaw, e-discovery, website ownership, some trademark and just about anything else that I (or you) can think of.  Of course, I’m also likely to include general litigation points or developments that strike my fancy.

 

When:  I make no promises, but the when is going to be as often as I can.

 

Where:  While the scope of the issues I plan to address are global, my location is Indianapolis, Indiana, which is a beautiful mecca of the Midwest.  Be it ever so humble there is no place like home.  More specifically, the “where” is Alerding Castor LLP (or as I’m likely to affectionately refer to it “AC”).  Alerding Castor is a quickly emerging law firm in Indianapolis that focuses on virtually all areas of business and corporate law, general and complex litigation and trials, probate litigation, real estate, private venture capital, and technology law.  One of the name partners, David Castor is an outstanding transactional law who has established himself as a guru of SaaS law and transactions.  The other name partner Michael Alerding is one of the best litigators I’ve ever met.  Together they make a great team, and have brought together a great team.  Obviously, I’m somewhat biased because they sign my paychecks, but, I think they both deserve a “shout out” for what they are doing and what they are building. 

To learn more about AC, check out http://www.alerdingcastor.com/index.html .  To learn more about David, check out his blog at http://blog.alerdingcastor.com/blog/alerding-castor.   

 

Why:  “What work I have done I have done because it has been play. If it had been work I shouldn't have done it. Who was it who said, ‘Blessed is the man who has found his work’? Whoever it was he had the right idea in his mind. Mark you, he says his work--not somebody else's work. The work that is really a man's own work is play and not work at all. Cursed is the man who has found some other man's work and cannot lose it. When we talk about the great workers of the world we really mean the great players of the world. The fellows who groan and sweat under the weary load of toil that they bear never can hope to do anything great. How can they when their souls are in a ferment of revolt against the employment of their hands and brains? The product of slavery, intellectual or physical, can never be great.”  -Mark Twain