SCOTUS grants certiori on privacy litigation - City of Ontario v. Quon
Posted Thursday, January 14, 2010 by Chris Stephen
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.

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Non-technology blog entry - Indiana Senate Bill 192
Posted Tuesday, January 12, 2010 by Chris Stephen
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.

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The other cloud hanging over L.A. - developments in cloud computing law
Posted Monday, December 14, 2009 by Chris Stephen
Google announced in its blog today that Los Angeles has officially switched to using Google Apps for e-mail and collaboration.  34,000 city employees will now be using the Google cloud to do their work and, more importantly, their communication.  This is a substantial development in cloud computing law.  This will highlight the pros and cons of cloud computing for the future,and is likely to shape the success of other municipalities going the same way.  Data issues and privacy litigation is likely to start popping up even more predominately related to the cloud.  Plus the bloggers will get to continue to discuss the impact of Google taking over the technology world. 

Overall, I think that cloud computing is the future, but as a technology legal counsel, I can't help but watch this development with youngster-like anticipation.  As goes the cities, so goes the country.  Keep your eyes on the horizon for developments from this jump by L.A..  The litigation that is possible from this decision by L.A. will be delectable.    

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The upside to cooperation in ESI data mining
Posted Tuesday, December 8, 2009 by Chris Stephen
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.

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E-books for Lawyers: The Future or Flash-in-the-Pan
Posted Friday, November 20, 2009 by Chris Stephen
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.
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