Your friendly neighborhood technology legal counsel here:  One of the greatest aspects of our firm is the fact that we, as attorneys, get to partner with our clients to assist in the development of their dreams.  Additionally, while we focus on being the general counsel for all business types and sizes, one of my personal areas of passion is seeing new technology based clients develop and partnering with them to see their success. 

One such emerging company that I'm happy to say we are partnering with is Den of Deliverabilty (www.denofdeliverability.com) ("DoD").  DoD is a start-up for which we've done SaaS legal consulting.  They are focused on assisting their clients in getting their e-mail messages to the end user and drawing the distinction between "ham" (mail that people requested and want to receive) and "spam" (unsolicited commercial electronic mail).  This process can be much more arduous that one might initial think, but luckily, DoD can help any business maximize their marketability through the proper use of commercial electronic messaging. 

I'm very excited to see this company take off.  They have great ideas and really cool software components that I think are going to be essential to any business.  And just for fun legal disclaimer (what do you expect, I'm a lawyer) as I mentioned, I, and this firm, have done legal work for them, but we are not otherwise compensated by them.

So if you think this is something that your business might benefit from, check these guys out.  

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.

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.    

Interesting case (2009 WL 4261214) came across my desk.  Not related to Indiana Internet litigation, but interesting conundrum.  The basic facts are that client wanted to send e-mail response to his attorneys.  In adding the second attorney, he inadvertently sent it to a third party.  Through several forwards, it ends up at his opposing counsel's desk.  That counsel wants to use it in litigation.  Ultimately, the Idaho District Court found that it was an inadvertent production and made the opposing counsel give it back. But, the case still highlights the problem.

We use autofill in everyday life without ever thinking about it.  But in litigation in general, the attorney-client privilege must be cherished and defended.  As a technology counsel, I deal with clients that are more computer and e-mail savvy than some you may find.  My clients live on e-mail.  Frankly, I live on e-mail.  And this creates the needs for an additional level of vigilance that is necessary.

So in the immortal words of Hill Street Blues (and who didn't love that show) "Be safe out there".  And remember to double check your e-mail recipients.  

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.

Something crossed my screen today that piqued my interest.  That concept is competitive keyword advertising litigation.  The case that sparked my curiosity is Fair Isaac Corp v. Experian Information Solutions, Inc., 2009 WL 4263699 (D. Minn. 11/25/2009) (www.jurisnote.com/Cases/fair6411.pdf).  For a good analysis of the ruling see Eric Goldman's blog (blog.ericgoldman.org/archives/2009/12/competitive_key.htm).  Interestingly, the case law to date on this issue has found for the defendants in most cases, but it makes me wonder about the legal theory, specifically  why this isn't more widely explored and if the average entrepreneur is even thinking about this.

The concept, boiled down to very brass tacks, is that the owner of a valid, distinct trademark whose mark is being used by another party for use in competitive keyword advertising that cause confusion to the consumer may have an equitable remedy.  This stems from the Lanham Act.  There is some question of whether actual confusion is necessary, but it is obviously going to help if one can show actual confusion.  Thus, the elements are (1) ownership of a valid, distinct mark; (2) use of that mark by another party; (3) in a manner that is likely to lead to consumer confusion as to the source, sponsorship or affiliation with the mark.  Now take those elements and apply them to competitive keyword advertising.  So, if I use a mark as a keyword in order to increase my on-line exposure, but do so in such a manner that it creates confusion, I can be liable to the holder of the mark and the remedy is an injunction against my use.   

Now, to date, courts have found in favor of the defense, but I can see on the horizon a court that does find confusion.  In the Fair Isaacs case, the court discredited the plaintiff's expert (I'd love to know what he said that the court determined lacked credibility and if Fair Isaac's is going to ask for their money back in light of the court's ruling).  But, how far away are we from a case in which the Court is persuaded.  I think it will only take one or two court rulings before this becomes a more readily available and pursued cause of action.  As companies increase their on-line presence and efforts to obtain competitive advantage through mechanisms like keyword search terms, the chances of confusions increase.  As those chances increase, the possible success of this type of litigation increases.

The implication to the entrepreneur is that the knowledge of this principle can be useful in an offensive and defensive posture.  Offensively, if you have a mark, you need to be vigilant in your oversight of how that mark is being used and if you determine that it is being used by other parties in keyword usage that will confuse consumers, you need to make sure you have your evidence and move quickly for injunctive relief.  Defensively, as your business develops its marketing strategy and using keywords you need to be cognizant of the fact that, if you are using a trademarked item, you are doing so in such a way that confusion will not ensue. 

Overall, I think that this another example of the potentials in Internet litigation.  This is a  cause of action that arises, in my humble opinion, only in the technology age.  Because search engines allow for large keyword grabs, this type of confusion can (and likely will) arise, and in doing so, infringement and litigation has (and will) also ensue. 

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.

WIth the FTC guideline debate firing up the information technology law debates, Eric Goldman had an interesting post on Monday about the possiblity of 47 U.S.C. 230 preempting at least a portion of the guidelines.  Here is the text of his post (found at his Technology & Marketing Law blog): 

"Last week’s release of the FTC's new Endorsement and Testimonial Guidelines has generated a significant amount of angst online. The resulting commentary has been strongly and almost uniformly negative. Frankly, none of the sources I read have praised the guidelines, but perhaps I'm locked in an echo chamber. Declan has a useful recap/linkwrap.

In this environment of heightened negativity, people have been searching for angles to prove the FTC can't do what it's doing. This has led folks to my post from last week arguing that certain facets of the guidelines violate 47 USC 230.

Despite the general popularity of the post, privately it has attracted some skepticism. Several smart law professors/lawyers disagreed with my post in Facebook profile page comments, and I've gotten some private emails to the same effect. What’s caught my attention is that these disagreements are coming from folks who normally agree with my expansive 230 interpretations. This clearly indicated to me that 230’s application to the FTC’s scenario was not nearly as self-evident as I thought it was.

As a result, in this post, I'm going to describe my analysis in more detail than my previous post. I'm not sure I'll convince the doubters, but they deserve more detail than I initially provided.

The FTC's Example

There are many facets to the new guidelines, but I am focusing solely on Example #5 to §255.1, which reads:

Example 5: A skin care products advertiser participates in a blog advertising service. The service matches up advertisers with bloggers who will promote the advertiser’s products on their personal blogs. The advertiser requests that a blogger try a new body lotion and write a review of the product on her blog. Although the advertiser does not make any specific claims about the lotion’s ability to cure skin conditions and the blogger does not ask the advertiser whether there is substantiation for the claim, in her review the blogger writes that the lotion cures eczema and recommends the product to her blog readers who suffer from this condition. The advertiser is subject to liability for misleading or unsubstantiated representations made through the blogger’s endorsement. [my emphasis]

The blogger also is subject to liability for misleading or unsubstantiated representations made in the course of her endorsement. The blogger is also liable if she fails to disclose clearly and conspicuously that she is being paid for her services. [See § 255.5.]

In order to limit its potential liability, the advertiser should ensure that the advertising service provides guidance and training to its bloggers concerning the need to ensure that statements they make are truthful and substantiated. The advertiser should also monitor bloggers who are being paid to promote its products and take steps necessary to halt the continued publication of deceptive representations when they are discovered.

The FTC doesn't define what qualifies as a "blog advertising service," but it's fairly clear the FTC is targeting PayPerPost/Izea and its competition. So the example could be restated as:

* advertiser contracts with PayPerPost to get bloggers to write about its product
* PayPerPost makes a match with a blogger. There is no employment or agency relationship between the advertiser or the blogger; this is an ordinary customer-vendor relationship, mediated by PayPerPost
* without any pre-review or kibitzing by the advertiser, the blogger makes a truthful statement about the blogger's experience about the product, but the statement would be impermissible marketing if made by the advertiser
* the FTC treats the advertiser as having made the blogger's statement

Prima Facie Elements of a 47 USC 230 Defense

47 USC 230(c)(1) reads:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

A successful 230(c)(1) defense breaks down into three prima facie elements:

1) the defendant must be a "provider or user of an interactive computer service"
2) the content generating the alleged liability must be "information provided by another information content provider"
3) the legal claim has to treat the defendant as the "publisher or speaker" of the third party content

230 has a number of statutory exclusions, but I don't think any of them are relevant to Example 5.

Application of 47 USC 230 to Example #5

With this in mind, the FTC's Example #5 satisfies the prima facie elements of a successful 230 defense as follows: the advertiser is the user of an interactive computer service, the blog post is content provided by another information content provider, and the FTC's theory that the advertiser adopts or endorses the blog post treats the advertiser as the publisher or speaker of the third party blogger's blog post.

I received significant skepticism about my characterization of the advertiser as the "user" of an interactive computer service. I can reach this conclusion in two ways. First, PayPerPost provides an interactive computer service, and the advertiser uses PayPerPost. Second, the advertiser is a "user" of some Internet connectivity provider just by getting online.

Admittedly, explanation #2 is expansive, perhaps disconcertingly so. By this reasoning, anyone online automatically qualifies as a "user" of an interactive computer service by definition, thus seemingly expanding the 230 immunization eligibility to everyone without restriction. While this may sound wrong, it’s entirely consistent with how courts have interpreted the term “user.” The leading case on the topic, the California Supreme Court opinion in Barrett v. Rosenthal, never provides a single crisp definition of "user" but seemed to contemplate that merely being online qualified. Some minor cases possibly read "user" more narrowly, but I think the dominant line of cases gives “user” an expansive definition.

From a doctrinal standpoint, I think the broad reading of 230's application makes a lot of sense. The cases over the past 13+ years have taught us that 230(c)(1) can be distilled into a simple syllogism: unless the plaintiff’s claim fits into one of the statutory exclusions (IP, federal crimes, ECPA), A isn't liable for third party B's online content or actions. Period.

In the FTC’s Example #5, A is the advertiser and B is the blogger. Applying the same syllogism as above, the advertiser can’t liable for the blogger's online content or actions. Period.

The fact that the advertiser paid the blogger to write the content doesn't change my analysis one bit. For example, in the 1998 Blumenthal v. Drudge case, AOL got a 230 defense for Matthew Drudge's allegedly defamatory content, even though AOL paid $3,000 a month for Drudge's columns and retained editorial control over the content. I'm pretty sure 230 has applied in other cases where the defendant paid for the content. If you can think of others, I’d appreciate the reminder.

Further, the payment doesn't create a respondeat superior relationship between the advertiser and blogger. There is no credible argument that the blogger is the advertiser’s employee. I don’t think the example indicates an agency relationship because the advertiser lacks the requisite control over the blogger. PayPerPost’s mediation of the advertiser-blogger relationship further reinforces the lack of agency; indeed, the advertiser may not even be communicating directly with the blogger. And even if the blogger were the advertiser’s employee or agent, 230 still might apply for the blogger’s statements that exceed the advertiser’s authorization. See Delfino v. Agilent and the Higher Balance case.

If you don't like the broad reading of "users" (even though I think it is defensible under the case law), then go back to my first explanation that both the advertiser and blogger are "users" of the interactive computer service provided by the blog advertising service provider (e.g., PayPerPost). This argument works just fine too.

Applicable 230 Precedent

Unfortunately, I can’t point to many 230 cases applying the immunization to circumstances where the defendant did not host or republish the allegedly tortious content. Most 230 cases involve a provider's liability for its user's content or actions (the “paradigmatic” 230 case).

In contrast, we don't see many cases interpreting the user defense, but then again, those lawsuits may be so tenuous anyway that they are rarely brought. For example, I could not find any specific cases applying 230 to the linking situation I critiqued in my SEC comments.

Even without any obvious precedent, I think the statute on its face leads easily to the conclusion that advertisers can't be liable for bloggers' independent posts. As I indicated in my initial post, I don't even see that as a close case under 230.

One reasonably close precedent, the Subway v. Quiznos case, hasn’t reached a solid 230 ruling yet. In that case, Quiznos reposted some user-created advertising videos, and Subway contended that the videos constituted false advertising. The court rejected Quiznos' 230 defense solely on the grounds that it was raised in a 12(b)(6) motion to dismiss, which the court said was too early. (This same issue arose in Barnes v. Yahoo, where the Ninth Circuit initially agreed with this court and then withdrew that portion of its opinion). Although 230 didn’t apply at the 12(b)(6) stage, could Quiznos claim 230 for the videos at a later stage of the proceeding? I think it can, even if it "adopted" the user-generated videos by republishing them, unless it actually authored the statements that are deemed false advertising. For examples where a republisher can claim 230 for content is putatively “endorses” through its republication, see, e.g., the Barrett case, the Batzel case, the Tefft case (one of the minor cases narrowly interpreting “user”), the D’Alonzo case and the Furber case. I’m sure I could find others.

I think the FTC's Example #5 is an even easier 230 case than Quiznos’ situation. Unlike Quiznos, the advertiser in Example #5 never republished the blog post or even signaled any adoption of or agreement with the post. With such a tenuous relationship between the advertiser and the blogger, the FTC’s overreaching—and the role 230 plays in preventing that overreaching—is even clearer.

Conclusion

As the old expression goes, when you’re a hammer, everything looks like a nail. So perhaps I’m just such a 230 enthusiast that I’m finding it in places it doesn’t belong.

However, having read many dozen 230 cases over the past 13 years, I’ve formed the strong opinion that courts treat 230 as saying A isn’t liable for third party B’s online content. If you accept that proposition (and resist the temptation to manufacture provisos and qualifications that don’t actually exist in the cases), then it should be clear why 230 preempts Example #5—because that’s exactly what the FTC is trying to do."

My Comments

If this interpretation is correct, which I think it is, the implications for business law and the technology lawyers is that an other level of insulation will protect entrepeneurs who are interested in using word of mouth blogging campaigns.  Protection from liabliity under 47 USC 230 is one of the biggest protections afforded to litigants.  The obvious question that I think this poses is:  If the FTC is trying to get around 47 USC 230, and is likely going to be unsucessful, how long will the protection of 230 be available before Congress removes it?  Of course, these types of questions are why I love being a technology lawyer.

The Federal Trade Commission has published its Final Guide Concerning the Use of Endorsement and Testimonial in Advertising (16 C.F.R. Part 255) (link to notice-www.ftc.gov/opa/2009/10/endortest.shtm).  This Guide addresses in detail the use of blogging endorsements for products.  Under the new Guide, bloggers will be required to disclose the material connection they share with the seller of a product or services.  These guides are not law, but are rather administrative interpretations of law to assist advertisers with compliance with the Federal Trade Commission Act.  That being said, Court will certainly consider them as persuasive authority, so businesses need to be aware of them.

The implications from a information technology law or entrepreneurial law perspective is pretty profound.  Blogging has always been the last bastion of free speech where anyone can put forward their ideas, impressions, and opinions without reprisal (with the exception of being forced to endure some flaming if your posts are outlandish).  This included a wonderful opportunity for word of mouth advertising campaigns, that are really just now starting to come into their own.  But now, that freedom is curtailed slightly.  It also represents an increasing involvment of the government in the Internet. 

Personally, I think this position by the FTC is good.  It is important for bloggers to disclose if they are compensated for their opinions and endorsements.  Consumers should have full information when making their decisions.  The impacts on businesses, however, will be significant.  Both businesses that blog themselves and businesses that utilize blogging as an advertising tool will be affected.

One aspect of this Guide that I find most intriguing are statements to the effect that advertisers may be liable for the statements made by paid endorsers on blogs.  These statements are related to Commission prosecution of claims, but, from a technology counsel standpoint, these statements could open the door to increased product liability or breach of warranty litigation from on-line statements.  Increases in this type of litigation may have impact on court's opinions related to Section 230. 

The Guide is now out there with an effective date of December 1, 2009.  Be aware and good blogging.  

Last Tuesday, I attended the TechPoint Innovation Summit.  In addition to meeting some great entrepreneurs and technology business people, I was fortunate enough to hear Clayton Christensen speak about his disruptive innovation economic theory.  I have to admit that this was my first exposure to this particular theory, but it highly intrigued me and made me think about its applicability to the practice of law in general and to business law firms specifically.

In a nutshell, Christensen's theory describes the impact of new technologies on a given market.  Essentially, in any given market, there is first a push for centralization. This centralization actually results in a higher cost to the consumer as the centralized firms compete with each other for top billing.  Following that centralization, new technologies emerge that allow for businesses to do things cheaper and simpler.  These new technologies lead to innovations in the market that eventually force change or failure of the centralized companies.  I know that I've put together the 100,000 foot view of the theory, but you get the gist.

Applying this model to business law firms, you see the implementation of centralized firms, in the advent of the big law firm.  These big firms then compete with each other and ultimately drive up the cost to the end-user.  Following Christensen's theory, now is the time for disruptive innovators in the legal field.  This reality is evident in the hard impact that big firm's suffered in the recent economic times.  

In my humble opinion, this theory is why firms like Alerding Castor Hewitt are competing well in these markets and will not only continue to be effective, but will thrive.  Through the willingness to embrace technology and focus on cost-effective, simpler representation, firms like ACH can focus on the entrepreneurs that need this representation, but aren't willing to endure the big firm costs. 

Why is this important?  Because as the world continues to change and technology law and innovation comes to the forefront, the innovators will be leading the pack and will want representation that understands both their needs and their spirits.  While this new business reality continues to develop, those of us here at ACH will continue being disruptive innovators (which incidentally would also be a great name for a band).   

I had every intention today of writing an insightful piece on the recent Lori Drew decision handed down by District Court in California yesterday, however, Eric Goldman beat me to it. So, I'm going to instead give you the link to his blog post on it and send him a big kudos from the Indiana technology law world. 

Professor Goldman's tech and marketing blog (which I recommend to anyone that is interested in cyberlaw or Internet litigation) is http://blog.ericgoldman.org/.  His blog also has a link to the opinion.

I agree with his analysis, but don't just take my word for it; read it.  

Of course, the real danger I see in this opinion is the likelihood of legislation aimed at "fixing" the perceived problems with trying to shoehorn criminal cases into CFAA.  This potential scares me quite a bit actually.  From an Internet litigation standpoint, I think this case has significant criminal importance, slight or non-existent civil liability impact, and the potential for havoc-wreaking ramifications when wielded in the hand of legislators that are knee-jerk and not really educated on the realities and implications of the Internet.  This potential legislative hammer could have real impact on website owners and SaaS providers in terms of what can or cannot be dealt with in either their Terms of Service or at other parts of their websites. 

One aspect of any litigation, be it internet litigation, software litigation, any any other type, is the production of documents in discovery.  Accompanying this necessary procedure is the fear and stomach-wrenching possiblity of the inadvertent production of privileged materials.  Nothing will make an attorney or a client go pale faster than realzing that they've produced to opposinig counsel a correspondence between client and attorney.  The proliferation of electronically stored information (ESI) and e-mail communications between attorney and client makes this an even greater risk.  Additionally, if you have an attorney in house that fills the role of both counsel and business person, the possiblity of an indavertent production of privileged material increases.  

Luckily, FRCP 502(b) protects against this likelihood.  The reality is that these types of production are going to happen, especially when dealing with electronic discovery.  502(b) provide that the disclosure of privileged communication will not operate as a waiver if it is inadverent, the holder of the privilege took reasonable steps to prevent disclosure, and the holder promptly took reasonable steps to rectify the error when production occurs.  

"Reasonable steps" is one of those greatly amorphous legal terms that lawmakers love to put in statutes or rules.  What is going to constitute a "reasonable step" is going to be in the eye of the beholder (most likely your judge).   But there are some things that may help you.  Keep some of the following in mind: 

• limit the number of receipients on communications to counsel to only those that are necessary for the communication
• If you have an in-house counsel who wears more than one hat, make sure that all e-mail to him in his legal counsel capacity are specifically identifed as such.
• Only put "privileged" on those e-mails that are truly privileged.  Don't include it on all regular e-mails.
• Clearly identify e-mails and subject lines to assist in future searches. 
• Keep a list of attorneys and legal professionals that are utilzedby your company to assist with future searches. 

Keep in mind your reasonableness in determining what steps to take in dealing with electronic discovery.  Whether you are writing your litigation attorney, your securities attorney, your probate attorney, or any other legal counsel, the steps you take now will protect your confidential material in the future.

First, let me give a big "shout out" to my new colleagues Brian Hewitt and Dave Leske.  Brian Hewitt recently became a name partner with Alerding Castor LLP.  The new firm of Alerding Castor Hewitt LLP exploded into being on June 28, 2009.  Brian is a litigator of the highest caliber with years of experience in commercial, banking, and probate litigation.  Additionally, he is an outstanding mediator.  Dave, who also joined the firm on June 28, 2009, is a transactional attorney with a background in finance.  He'll be working in the areas of real estate, probate, and general transactional work.  I can't wait to work with both of them and am very excited for the future that is on the horizon for ACH.  

Now on to the actual topic for today: Minutia.  I've recently been working with another of our litigators, Gregg Gordon, on some matters and one of the things that struck me was his attention to detail.  I know that Gregg has been touted as the "King of Minutia" before, so I was not shocked at the attention to detail, but it impressed upon me the significance of minutia in today's world, particularly in the arena of e-discovery. 

In today's litigation forum, e-discovery is the emerging field that is both a quagmire and a goldmine.  E-discovery is the component of litigation that is now focused on the collection of electronic data.  The Federal Rules of Civil Procedure allow for the detection and collection of electronic data, and many state court rules are following suit.  Thus, electronic data is now fair game in all types of litigation.  From the multi-billion dollar patent suit against the Fortune 100 company to the smallest of state court collection matters. 

In my experience, the factor that will keep one safely in the gold mine area and away from the quagmire is the litigator's attention to detail.  Imagine that you are a young, "junkyard dog" type litigator trying to piece together an accurate picture of your opponent and the factual basis behind your case.  It doesn't really matter what the type of litigation is.  What matters is your ability to think outside the box about the minute details of the other person's life.  Do they have an e-mail account?  Do they have documents on their hard drive?  Have they ever moved documents or files to their iPod? etc., etc.  The ultimate question that litigators have to focus on is where can I find what I need.  In order to answer that question, it is necessary to become your own "King of Minutia" 

Of course, this attention to detail is equally applicable to today's business owner.  As you go about your daily activities, be cognizant of your electronic footprint and of the details that are out there waiting to be learned about you or your business.  By being aware of the dangers, you will be better suited to protect your interest.   

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