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.
Posted Monday, January 4, 2010 by
Janet Croswell
Alerding Castor Hewitt, LLP is proud to announce the addition of Indiana technology lawyer Bill Boncosky to the firm. The former General Counsel for ExactTarget, Bill has tremendous experience as technology counsel for one of the most successful technology start ups based right here in the heart of Indianapolis. A company that had just over a dozen employees when he joined, Bill has substantial experience in licensing agreement negotiations, ASP Law and Cloud Computing Law serving in that role for over seven years. He will be able to provide significant guidance based on solid experiences to many of our clients operating within this industry.
If you're looking for SaaS legal consulting, the attorneys at Alerding Castor Hewitt, LLP can help. The newest attorney to join the firm, Bill Boncosky, is no exception.
Posted Friday, December 11, 2009 by
Chris Stephen
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.
Posted Monday, November 16, 2009 by
Janet Croswell
Here at Alerding Castor Hewitt, LLP, often times we work with clients who have software that inherently transcends state and national borders. Not just brick and mortor storefronts, many of our clients have customers nationwide and around the world.
Such is the realm of cloud computing law, and it's up to us as technology legal counsel to answer the inescapable question of what state, federal, or even country's law applies should a lawsuit arise.
Well, if you haven't contracted for this simple jurisdictional provision specifically in the terms of your license agreement or software service level agreement, as a SaaS company you may just find yourself flying over to London someday to deal with a breach of contract under U.K. law and their interpretation of your agreement.
All I have to say is good luck, and I hope you are prepared for those Barristers' premium legal rates.
Even if you win your case, you just wasted a tremendous amount of valuable time and money unnecessarily on SaaS litigation in the "wrong" venue.
I'm all for making the deal, but before you go shaking hands and rolling out your new Software as a Service application with a form agreement and without proper advisement, be sure to consult with reliable technology counsel to help you draft a solid agreement for your company's SaaS product.
Posted Tuesday, October 6, 2009 by
Chris Stephen
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.
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.
Posted Wednesday, September 23, 2009 by
David Castor
This article is just too good and deserves a repost on the Business & Culture Blog. I am an Indiana technology lawyer focusing on entrepreneurial law, SaaS business law and technology law. As such, this article hits home as it lies at the intersection of social media and legal process. The article is by Robert Ambrogi and posted on the IMS Expert Services blog. I will repost it in 3 parts - all are worth reading.What happens in Vegas stays in Vegas. The same is not true of what happens online. With increasing regularity, litigants, lawyers, witnesses, jurors and even judges are seeing their online activities come back to haunt them in court.
This month, Bullseye brings you the best of the worst – 10 of the most outrageous examples of people caught in the courtroom by what they did on Facebook, Twitter or elsewhere online.
Next month, we will tell you how to participate in social media safely, so that your online activities don't get you in legal hot water.
10. Counting keystrokes
Mary Mack, corporate technology counsel for the e-discovery company Fios Inc., once worked on a personal injury case in which the plaintiff claimed that his injuries left him unable to use his hands for anything but minimal activities. Searching the Web for information about the plaintiff, the defense team discovered that he was a blogger. Not only was he a blogger, but he was a prolific blogger.
Had the defense counsel simply confronted the plaintiff with his numerous blog posts, that probably would have been sufficient to discredit him. But the defense team went an extra step. It downloaded all his blog posts and calculated precisely how many keystrokes would have been required to write them all.
When the defense confronted the plaintiff with that number at trial, the plaintiff's facial expression no doubt said even more than his well-functioning fingers ever could.
9. Texting is a no-no
During a video deposition, the deponent, an executive of the company being sued, was in California. Plaintiff and defense counsel were in New Jersey. The deponent's pro hac vice attorney was in Michigan. The video stream showed deponent and his PHV attorney from only the chest up.
Turned out, deponent and his counsel were busy below chest level, texting each other throughout the deposition. No one might ever have been the wiser, had PHV counsel not inadvertently addressed one of these text messages to plaintiff's counsel.
Needless to say, plaintiff's counsel went straight to court, demanding to see the text messages. The defense fought their release, arguing attorney-client privilege protected them. A federal court in New Jersey sided with the plaintiff and ordered the text messages handed over. Texting was no different than passing notes, it ruled, and violated the Federal Rules of Civil Procedure.
8. Twittering from the bench
A magistrate in England found himself steeped in hot water after it was discovered that he was "tweeting" about his cases. It all came to a boil after another magistrate discovered the tweets and complained.
The tweets came after the magistrate was called in on a Saturday to hear bail applications for defendants arrested the night before. "Called into Court today to deal with those arrested last night and held in custody," he tweeted. "I guess they will be mostly drunks but you never know."
He continued to tweet as he heard the cases of three men accused of robbery. For example, one tweet said, "1st defendant. Conspiricy to rob TSB of £500,000. Good start - wrong previous convictions presented." He later concluded with this tweet: "Finished hearing bail. 3 refused for planning robbery of £480,000 from Tsb in Dawley, Telford."
When the magistrate learned that his tweets were to be investigated by a judicial advisory committee, he chose instead to resign from the bench. But even as he resigned, he maintained he did nothing wrong. Where better to defend himself but on Twitter, where he posted this explanation: "I didn't tweet whilst sitting in court but in the retiring room during the break and at the end of the hearing."
This month, Bullseye brings you the best of the worst – 10 of the most outrageous examples of people caught in the courtroom by what they did on Facebook, Twitter or elsewhere online.
Next month, we will tell you how to participate in social media safely, so that your online activities don't get you in legal hot water.
10. Counting keystrokes
Mary Mack, corporate technology counsel for the e-discovery company Fios Inc., once worked on a personal injury case in which the plaintiff claimed that his injuries left him unable to use his hands for anything but minimal activities. Searching the Web for information about the plaintiff, the defense team discovered that he was a blogger. Not only was he a blogger, but he was a prolific blogger.
Had the defense counsel simply confronted the plaintiff with his numerous blog posts, that probably would have been sufficient to discredit him. But the defense team went an extra step. It downloaded all his blog posts and calculated precisely how many keystrokes would have been required to write them all.
When the defense confronted the plaintiff with that number at trial, the plaintiff's facial expression no doubt said even more than his well-functioning fingers ever could.
9. Texting is a no-no
During a video deposition, the deponent, an executive of the company being sued, was in California. Plaintiff and defense counsel were in New Jersey. The deponent's pro hac vice attorney was in Michigan. The video stream showed deponent and his PHV attorney from only the chest up.
Turned out, deponent and his counsel were busy below chest level, texting each other throughout the deposition. No one might ever have been the wiser, had PHV counsel not inadvertently addressed one of these text messages to plaintiff's counsel.
Needless to say, plaintiff's counsel went straight to court, demanding to see the text messages. The defense fought their release, arguing attorney-client privilege protected them. A federal court in New Jersey sided with the plaintiff and ordered the text messages handed over. Texting was no different than passing notes, it ruled, and violated the Federal Rules of Civil Procedure.
8. Twittering from the bench
A magistrate in England found himself steeped in hot water after it was discovered that he was "tweeting" about his cases. It all came to a boil after another magistrate discovered the tweets and complained.
The tweets came after the magistrate was called in on a Saturday to hear bail applications for defendants arrested the night before. "Called into Court today to deal with those arrested last night and held in custody," he tweeted. "I guess they will be mostly drunks but you never know."
He continued to tweet as he heard the cases of three men accused of robbery. For example, one tweet said, "1st defendant. Conspiricy to rob TSB of £500,000. Good start - wrong previous convictions presented." He later concluded with this tweet: "Finished hearing bail. 3 refused for planning robbery of £480,000 from Tsb in Dawley, Telford."
When the magistrate learned that his tweets were to be investigated by a judicial advisory committee, he chose instead to resign from the bench. But even as he resigned, he maintained he did nothing wrong. Where better to defend himself but on Twitter, where he posted this explanation: "I didn't tweet whilst sitting in court but in the retiring room during the break and at the end of the hearing."
Posted Sunday, August 17, 2008 by
David Castor
As a business attorney with Alerding Castor, LLP, I provide legal services and counsel to technology companies. In my representation, I have seen a lot of results of globalization arising from our Indianapolis market. It is exciting to see our local companies rise to the global stage. The barrier of entry to world markets is drastically open to Software as a Service and other internet-based software providers.
I remember a professor in my MBA program at Butler University telling the class that "the world is becoming more flat" as a result of globalization (i.e., the increase in technology which gives more ready access to global markets). I am currently reading The Flight of the Creative Class by Richard Florida. Florida suggests that the world is not becoming flat, but spiky. In terms of economic horsepower and cutting-edge innovation, there are only a few regions in the world that are making a true impact on global economy. These are regions which attract innovative individuals and companies through creating and fostering a culture of creativity. This is my hope for Indianapolis, and truly what I want to see fostered in our city.
I remember a professor in my MBA program at Butler University telling the class that "the world is becoming more flat" as a result of globalization (i.e., the increase in technology which gives more ready access to global markets). I am currently reading The Flight of the Creative Class by Richard Florida. Florida suggests that the world is not becoming flat, but spiky. In terms of economic horsepower and cutting-edge innovation, there are only a few regions in the world that are making a true impact on global economy. These are regions which attract innovative individuals and companies through creating and fostering a culture of creativity. This is my hope for Indianapolis, and truly what I want to see fostered in our city.
