Tuesday, April 17, 2018
Agnieszka McPeak (Toledo Law) has published an article entitled Disappearing Data at 2018 Wis. L.R. 17, which considers the discovery implications of ephemeral social media platforms like Snapchat. Here's the abstract:
“Ephemeral” applications like Snapchat facilitate social interaction in a format that mimics the impermanence of face-to-face conversations. In the age of “big data” and the growing privacy concerns it raises, platforms offering ephemeral social media tools are meeting a market demand for smaller digital footprints. Additionally, these platforms are responding to regulatory pressure to embrace “privacy by design,” the idea that new technology should be built with privacy as a goal from the ground up. Indeed, ephemeral platforms, though imperfect in their impermanence, mark a positive shift in the direction of data minimization.
But the Federal Rules of Civil Procedure provide for broad discovery of electronically stored information. And they mandate, along with other rules, preservation of potentially relevant data in anticipation of litigation. Preservation duties for this new brand of ephemeral data, however, have not been clearly defined.
This article urges for a fair and balanced approach to defining preservation duties for disappearing data. While ephemeral content may be discoverable, onerous preservation duties are unwarranted and will negatively impact both corporate and individual litigants alike. For corporate interests, overly broad preservation duties lead to risk-averse companies stockpiling all things digital, often at great cost. For individuals, the law should recognize that mobile technology has become ubiquitous and social media is a key tool for personal expression, free speech, and social interaction. But individuals also have become the unwitting stewards of vast amounts of data, some of which is dynamic and ever-changing. Deletion or revision of personal information is a normal occurrence on social media platforms — indeed, some are a product of privacy by design. Overly broad preservation duties for individual litigants thus impose unwarranted burdens and are out of step with technological change.
Monday, March 6, 2017
In my opinion, the video is suitable for law students and also the general public. I think there is a great need for clear, brief videos on various aspects of the U.S. government. There appears to be a dearth of knowledge on that score. For example, the Annenberg Public Policy Center recently found that only 27% of Americans could name all three branches of government, and 31% could not name any of the three branches.
Friday, October 14, 2016
Eugene Volokh and Paul Levy have an interesting post over at the Washington Post/Volokh Conspiracy. It begins:
There are about 25 court cases throughout the country that have a suspicious profile:
- All involve allegedly self-represented plaintiffs, yet they have similar snippets of legalese that suggest a common organization behind them. (A few others, having a slightly different profile, involve actual lawyers.)
- All the ostensible defendants ostensibly agreed to injunctions being issued against them, which often leads to a very quick court order (in some cases, less than a week).
- Of these 25-odd cases, 15 give the addresses of the defendants — but a private investigator (Giles Miller of Lynx Insights & Investigations) couldn’t find a single one of the ostensible defendants at the ostensible address.
Now, you might ask, what’s the point of suing a fake defendant (to the extent that some of these defendants are indeed fake)? How can anyone get any real money from a fake defendant? How can anyone order a fake defendant to obey a real injunction?
Check it out to find the answers.
Monday, October 3, 2016
Last week, U.S. Magistrate Judge Laurel Beeler of the Northern District of California invoked Rule 4(f)(3) to order that a plaintiff be allowed to use Twitter to serve process on a Kuwaiti national. The case is St. Francis Assisi v. Kuwait Financial House, and the opinion begins:
The plaintiff, St. Francis Assisi (a non-profit corporation), sued the defendants, Kuwait Finance House, Kuveyt-Turk Participation Bank Inc., and Hajjaj al-Ajmi (an individual) for damages and equitable relief arising from the defendants’ financing of the terrorist organization known as the Islamic State of Iraq and Syria (ISIS), which resulted in the targeted murder of Assyrian Christians in Iraq and Syria. (See Compl., ECF No. 1.)
St. Francis has not been successful in serving process on al-Ajmi. (See ECF No. 10.) Al-Ajmi is a Kuwaiti national and efforts to locate him have been unsuccessful. (Id.) St. Francis now asks to serve al-Ajmi by alternative means under Federal Rule of Civil Procedure 4(f)(3) via the social-media platform, Twitter. (Id.) The court grants St. Francis’s request because service via Twitter is reasonably calculated to give notice and is not prohibited by international agreement.
Eric Goldman has coverage here.
Monday, August 29, 2016
Last week the U.S. Court of Appeals for the Second Circuit issued its decision in Nicosia v. Amazon.com, Inc., holding that the plaintiff’s suit against Amazon should not be dismissed for failure to state a claim based on the mandatory arbitration provision in Amazon’s Conditions of Use.
Of course there’s considerable discussion of the Federal Arbitration Act and substantive contract law, but the court also addresses pleading standards, the relationship between Rule 12(b)(6) motions and motions to compel arbitration, and standing (the latter with respect to the plaintiff’s request for a preliminary injunction).
Wednesday, June 15, 2016
Friday, March 18, 2016
Joe Seiner has posted on SSRN a draft of his essay, Tailoring Class Actions to the On-Demand Economy, which will be published in the Ohio State Law Journal. Here’s the abstract:
In O’Connor v. Uber, 2015 WL 5138097 (N.D. Cal. Sept. 1, 2015), a federal district court permitted a class-action case to proceed on the question of whether 160,000 drivers were misclassified by their employer as independent contractors rather than employees. The case has garnered widespread interest, making headlines across the country. Yet it represents only one of many class-action cases currently pending against technology companies in the modern economy. Indeed, similar systemic claims have already been brought against Yelp, GrubHub, Handy, Crowdflower, Amazon, and many others.
The courts have largely floundered in their efforts to address the proper scope of class cases brought against corporations in the on-demand economy. This is likely the result of a lack of clarity in this area as well as the unique fact patterns that often arise with technology-sector claims. Nothing has been written on this issue in the academic literature to date, and this paper seeks to fill that void in the scholarship.
Navigating the statutes, case law, and procedural rules, this Essay proposes a workable five-part framework for analyzing systemic claims brought in the technology sector. This paper sets forth a model for the courts and litigants to follow when evaluating the proper scope of these cases. The Essay seeks to spark a dialogue on this important — yet unexplored — area of the law.
Thursday, June 4, 2015
Know anyone studying for the bar exam who needs help in Civil Procedure? My esteemed colleague, Professor Ira Nathenson (a member of the Executive Committee of the AALS Section of Civil Procedure, as well as its webmaster and co-manager of the CivProMentor listserv), has recently posted some fine resources on his website.
Professor Nathenson’s site includes a Resources page for Civil Procedure on the Multistate Bar Examination (MBE). The resources include numerous Civil Procedure YouTube videos as well as problem sets, explanations, flowcharts, and handouts. (If you thought that the Erie doctrine could not be reduced to a flow chart, check out his Coggle flowchart here.)
The substantive materials are grouped by topic (such as subject-matter jurisdiction, personal jurisdiction, joinder, and much more), allowing you to zero in on Civ Pro issues of interest. Many of the YouTube videos are annotated, pointing you to related resources. The site also includes an overview of which Civ Pro topics topics are more likely to be tested.
As most people in the US legal world know by now, federal Civil Procedure was added to the Multistate Bar Examination only recently. It was first tested on the MBE during the February 2015 administration. Professor Nathenson's excellent materials should help to ease the panic for some new graduates preparing for the bar.
Wednesday, May 7, 2014
The State Bar of California has published a proposed formal opinion for public comment on the question, "What are an attorney’s ethical duties in the handling of discovery of electronically stored information?"
The digest of the opinion states:
An attorney’s obligations under the ethical duty of competence evolve as new technologies develop and then become integrated with the practice of law. Attorney competence related to litigation generally requires, at a minimum, a basic understanding of, and facility with, issues relating to e-discovery, i.e., the discovery of electronically stored information (“ESI”). On a case-by-case basis, the duty of competence may require a higher level of technical knowledge and ability, depending on the e-discovery issues involved in a given matter and the nature of the ESI involved. Such competency requirements may render an otherwise highly experienced attorney not competent to handle certain litigation matters involving ESI. An attorney lacking the required competence for the e-discovery issues in the case at issue has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in e-discovery issues can also result, in certain circumstances, in ethical violations of an attorney’s duty of confidentiality, the duty of candor, and/or the ethical duty not to suppress evidence.
The deadline for public comments is 5 p.m., June 24, 2014.
Saturday, February 15, 2014
Today was, originally, the deadline for submitting comments on the proposed amendments to the Federal Rules of Civil Procedure. The deadline has been extended to Tuesday, Feb. 18. The following announcement appears on the U.S. Courts website:
NOTE: To accommodate scheduled website maintenance, the deadline for submitting public comments has been extended. Comments must be submitted by 11:59 PM ET on February 18, 2014.
Monday, December 9, 2013
The Third Branch News reports "25 Years Later, PACER, Electronic Filing Continue to Change Courts."
Apparently without irony, Third Branch notes, "Lawyers speak of reduced stress at a workday’s end, knowing they can electronically file a document until midnight, without fear that the courthouse doors will close on them."
Friday, December 6, 2013
Okay, I've succombed to bitcoin madness. A search today of the ALLCASES library in the Westlaw database yielded three cases with the word "Bitcoin" in them. The only one of any recency was the following.
In Entrepreneur Media, Inc. v. Smith, No. 2:10–mc–55–JAM–EFB (E.D. Cal. Nov. 26, 2013), a judgment creditor/plaintiff moved to compel the production of documents sought in aid of enforcement of its judgment against the judgment debtor/defendant. The document request included, "Any and all books, letters, papers, files, or documents . . . which show any wire transfer, electronic distribution and/or transmission of funds, purchase of debit cards, acquisition and use of any online digital banking services, such as Bitcoin, and/or any and all other papers which show any account in YOUR name, and moreover, any account by any entity, including any digital entity, for the TIME PERIOD." Without addressing any issue that might have been presented by the inclusion of Bitcoin transactions in the document request, the court granted the motion to compel this particular request (although it denied the motion as to other requests).
Thursday, November 14, 2013
A project providing free online access to federal court opinions has expanded to include 64 courts. The federal Judiciary and the Government Printing Office partner through the GPO’s Federal Digital System, FDsys, to provide public access to more than 750,000 opinions, many dating back to 2004.
The Judicial Conference approved national implementation of the project in September 2012, expanding participation from the original 29 courts. FDsys currently contains opinions from 8 appellate courts, 20 district courts, and 35 bankruptcy courts.
Federal court opinions are one of the most heavily used collections on FDsys, with millions of retrievals each month. Opinions are pulled nightly from the courts’ Case Management/Electronic Case Files (CM/ECF) systems and sent to the GPO, where they are posted on the FDsys website. Collections on FDsys are divided into appellate, district or bankruptcy court opinions and are text-searchable across courts. FDsys also allows embedded animation and audio – an innovation previously only available with opinions posted on a court’s own website or on the Public Access to Court Electronic Records (PACER).
Sunday, September 22, 2013
On Monday, September 23, 2013, the International Court of Justice (ICJ) will celebrate the Centenary of the Peace Palace with a conference that will consider the following four topics:
1. A Century of International Justice and Prospects for the Future;
2. The International Court of Justice and the International Legal System;
3. The Role of the International Court of Justice for Enhancing the Rule of Law; and
4. The International Court of Justice and the United Nations: Relationship of the ICJ with other UN Organs.
A detailed conference agenda can be found here: http://www.icj-cij.org/presscom/files/4/17524.pdf.
And, information about how to view the conference either by live streaming or on-demand can be found here: http://www.icj-cij.org/presscom/files/4/17534.pdf.
Tuesday, September 17, 2013
Here is a Call For Papers for a symposium on Social Justice and Social Media to be held at Pace Law School on March 28, 2014:
Pace Law Review will host a one-day symposium entitled Social Justice and Social Media, on March 28, 2014 on the Pace Law School campus in White Plains, NY. The Symposium will address themes concerning the interplay between social media and the administration of justice, both civil and criminal. The Pace Law Review invites (10+) page papers for inclusion in its Summer 2014 Symposium Edition. The committee will consider a broad range of topics. Selected participants will be invited to present their papers at the symposium. Travel expenses to White Plains (30 minutes outside NYC), including hotel, transportation and meals will be provided.
Submission information and key dates:
Interested persons should submit an abstract of between 250 and 300 words suitable for a 15 minute presentation and to serve as the basis of a 10+ page paper (including footnotes). Longer papers are welcomed. Submissions should be made electronically to Prof. Leslie Y. Garfield, firstname.lastname@example.org. Please include name, affiliation and contact details in the body of the email. Submissions should be emailed no later than October 1, 2013. Final papers submission will be due June 1, 2014.
Monday, September 16, 2013
Friday, September 6, 2013
The National Law Journal reports on a recent article by Jeff Sovern (St. John's University School of Law) entitled "Law Student Laptop Use During Class for Non-Class Purposes: Temptation v. Incentives," 51 U. Louisville L. Rev. 483 (2013). The article concludes that first-year students have more incentives to pay attention during class and therefore are less distracted by laptop use than second- and third-year law students.
My own classroom policy seems somehow misguided in light of this conclusion. I don't allow laptops in first-year Civil Procedure, but allow them in upper-class courses. My reasoning is that 1Ls need to be weaned from their slacker college ways, that it is almost impossible for them to multitask Civil Procedure, and that they have no choice in being assigned to my section, so they can't transfer out. After they survive the first year, I treat them like the adult graduate students they are and try (not always successfully) to make the class valuable enough to pay attention to.
By now, most professors have fairly strong views on their laptop-in-class policy, but the article may provide some food for thought.
Monday, July 1, 2013
Here is the opinion in The Authors Guild, Inc. v. Google Inc. The opinion begins:
We consider in this appeal whether the United States District Court for the Southern District of New York (Denny Chin, Circuit Judge, sitting by designation) erred in certifying the plaintiff class—authors claiming that defendant-appellant Google Inc. committed copyright infringement by copying and displaying “snippets” of millions of books in the Library Project of its Google Books search tool. On the particular facts of this case, we conclude that class certification was premature in the absence of a determination by the District Court of the merits of Google’s “fair use” defense. Accordingly, we vacate the June 11, 2012 order certifying the class and remand the cause to the District Court, for consideration of the fair use issues, without prejudice to any future motion for class certification.
Wednesday, February 6, 2013
Answer #1: Today is their birthday.
Answer #2: They were never on Twitter.
If any of our readers would like to get links to this blog’s posts via Twitter, follow @Adam_Steinman. That’s likely to be the bulk of my Twitter feed (I don’t know how to make cat GIFs.)
Here are some other folks in the civil-procedure-federal-courts-o-sphere that I’ve come across so far…
- Cynthia Fountaine (Southern Illinois University), @clfountaine
- Jasminka Kalajdzic (University of Windsor), @JKal
- Benjamin Spencer (Washington & Lee University), @PROFSPENCER
- Beth Thornburg (Southern Methodist University), @btSMU
- Steve Vladeck (American University), @steve_vladeck
- Kevin Walsh (University of Richmond), @kevincwalsh
- Mr. T, @MrT
I’m new at this, so if you know of others please feel free to share.
Tuesday, November 27, 2012