Tech ignorance a major hurdle to conducting modern litigation

Guest Post by Michael Goodwin

Although recent changes to the ABA model rules specifically require technological competence, many lawyers remain unapologetic luddites. According to one federal judge, this lack of tech savvy is a major hurdle conducting modern litigation efficiently.

In the Fall issue of the journal Litigation, United States Magistrate Judge Patrick J. Walsh takes lawyers to task for what he perceives as a failure to educate themselves on basic technology:

Lawyers need to be versed in technology if they are going to be successful in discovery. If they are not, they should find someone in their firm who is and bring that person into the case for the discovery phase. Because I find that the lawyers are often unable to adequately discuss discovery of electronically-stored data, I often require them to bring the client’s information technology person to the hearing or have that person available by telephone to explain what the company is capable of retrieving and the time and costs that would be involved in doing so.

The failure to articulate the logistics and costs to find data, particularly electronically-stored data, is often fatal to arguments that the discovery sought is unduly burdensome or disproportionate.

A modicum of self-education is required, but like many lawyering skills, competently handling e-discovery is as much about asking the right questions, and finding out to whom they should be addressed. Learning the necessary technological concepts to manage e-discovery does not require a degree in computer science or a formal education in information technology, but it usually does require consultation with people who have that background. As Judge Walsh observes in the article, the client’s employees should be key members of the e-discovery team. These are the people who are usually in the best position to know where their ESI “lives,” how to capture it, and how much it will cost to do so. At least one landmark decision in e-discovery jurisprudence endorsed active collaboration with clients in the e-discovery process:

[I]f you are knowledgeable about and tell the other side who your key custodians are and how you propose to search for the requested documents, opposing counsel and the Court are more apt to agree with your approach.

Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182, 192 (S.D.N.Y. 2012). U.S. District Judge Shira Scheindlin made similar observations almost a decade ago in Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 439 (S.D.N.Y. 2004).

While obtaining appropriate tech skills does require some effort, lawyers aren’t alone. Teamwork, along with a willingness to learn, goes a long way.

Michael Goodwin is a litigation attorney at Jardine, Logan & O’Brien in Minnesota. Michael has experience in a range of practice areas, including government liability, insurance coverage, products liability, and employment law. He can be reached at mgoodwin@jlolaw.com.

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Georgia State Electronic Reserves and Copyright Ruling

Guest Blog by John Schlipp,[*] Intellectual Property Librarian, W. Frank Steely Library; schlippj1@nku.edu 

Not too long ago, headlines in the news reported of college students and homemakers taken to court by the recording industry for noncommercial file sharing of a small number of MP3 music files. Although officially illegal, some of these cases could be considered small change compared to piracy and copyright infringement issues of greater magnitude. Please understand that I am not condoning piracy. However, from a business point of view, one might question the return on investment by the Recording Industry Association of America for pursuing minor infringements. Indeed, discussions from intellectual property scholarly communities have debated whether these and other types of alleged infringements constitute piracy or fair use. One need only read the headlines to see that academia is not immune from the copyright piracy debate: “Are College Professors and Librarians Digital Pirates?;” “Professors get ‘F’ in copyright protection knowledge;”  and most recently a triumph for educators as, “Judge sides with GSU on copyright fight.”

As an intellectual property librarian directing the new IPAC (Intellectual Property Awareness Center) at Northern Kentucky University’s Steely Library, I have been following Cambridge University Press et al. v. Patton et al, the GSU (Georgia State University) case, since its inception in 2008.[i] For those unfamiliar, this case deals with the practice of librarians posting class readings for instructors as electronic reserves on password restricted content management sites such as Blackboard and determining at what point such postings are fair use rather than infringement. On May 11 2012, Judge Orinda Evans of the U.S. District Court for the Northern District of Georgia ruled that virtually the entire alleged infringements in this case were fair use. This is a victory largely for librarians, educators, and fair use, but a defeat for publishers.  Since librarians and educators must still work with publishers for the content they need, it is almost certain that the publishers will appeal this case.

I coach instructors about fair use and copyright in the classroom, as well as copyright from a creator point of view. Usually their preconceived beliefs about fair use and instruction range from excessively cautious (as they are intimidated by some misleading copyright notices posted by publishers and other media producers) to overly oblivious (believing that everything copied is fair use for education). Moderation is the exception. This tells us that, on the one hand a larger group of educators relinquish much of their lawful fair use opportunities for instruction, while others defy the fair use doctrine which could result in copyright infringement.[ii]

Kenneth Crews (legal copyright expert) and author of Copyright Law for Librarians and Educators, suggests that we can only benefit from fair use by taking control and understanding our legal rights as copyright owners and copyright users. With this awareness, we can be familiar with alternatives that the law allows and make choices about copyright that best advances our objectives as teachers, learners, and information professionals.[iii]

The doctrine of fair use within Section 107 U.S. Copyright Law, allows an unspecified limited reproduction of copyrighted materials related to classroom use. Those of us in education often refer to fair use guides from authorities such as Kenneth Crews at the Copyright Advisory Office of Columbia University Libraries http://copyright.columbia.edu/copyright/ which provides a defacto checklist to determine whether or not our educational use is fair use.

How does all of this apply to librarians?  As more college students receive their class supplemental readings from library electronic reserves on online content management systems, such as Blackboard, librarians and faculty are under scrutiny from publishers. A growing number of educators have gone so far as to create and promote Open Access journals (often with Creative Commons notices) to share their works for classroom instruction or other noncommercial applications. Textbooks may not be too far behind this new distribution model as discussed in an opinion piece targeted to Academic Publishers about Open Access in the Chronicle of Higher Education in April 2012 @ http://chronicle.com/article/Hot-Type-An-Open-Letter-to/131397/ .

Guidelines have existed to support librarians and educators since 1976 when the Agreement of Guidelines for Classroom Copying in Not-for-Profit Educational Instructions with Respect to Books and Periodicals were published in House Report 94-1476. Since then other guidelines, such as the American Library Association’s Model Policy Concerning College and University Photocopying for Classroom, Research and Library Reserve Use in 1982 and the 1991 federal court decision in Basic Books, Inc. v. Kino’s Graphic Corp., 758 F. Supp. 1522, 1526 (S.D.N.Y. 1991), have codified conservative safe harbors which most educators follow. Other guidelines for the digital world have also been introduced, such as CONFU (Conference on Fair Use associated with a 1995 report on the National Information Infrastructure), which never garnered the same support from publishers as the former guidelines.
A new Code of Best Practices in Fair Use for Academic and Research Libraries from the Association of Research Libraries (ARL) was introduced earlier this year. It crafts a new guide to address digital needs unthought-of when the earlier guidelines were created. Many fair use scholars have criticized the previous guidelines as too restrictive for educational use, whereas others argue that the newer Code is too laissez-faire. Hopefully the recent GSU case decision and the Code will offer educators a basis to make an informed decision and risk analysis that considers the law’s fair use flexibility for librarian and educators.

Why should educators be concerned about copyright and other intellectual property issues?

  • Virtual presence on the Web places small-to-midsized colleges at risk with larger institutions of higher education.
  • Educators must set an example for our students to respect intellectual property.
  • To protect our colleges and faculty/staff from lawsuits and other legal inconveniences.
  • The awareness of copyright compliancy with fair use (and the TEACH Act for online courses) are good preventive measures for all of us, including our students.
  • Respecting copyright ensures resource innovation and protection for both creators and consumers of copyrighted works.

To foster these points, more colleges are offering their faculty and students support with institutes such as the NKU Chase Law & Informatics Institute and Steely Library’s new IPAC. The IPAC will educate creators and consumers of intellectual property about issues such as copyright & fair use, plagiarism, patents & trademarks, and other resources and support related to the legal and ethical aspects surrounding intellectual property. Diverse campus and community constituents served may include, but are not limited to, students, educational instructors and librarians, authors and researchers, entrepreneurs and small business owners, inventors and scientists, musicians, visual artists, and others.

The new IPAC plans to accomplish its mission by providing associated information resources, workshops, conferences, an online intellectual property discussion support group, social networking access, and basic updates on legal intellectual property developments to support educators and the community. Why not help us with a survey as we build our new IPAC at Steely Library? Your input and specific needs count.  Tell us what programs and resources would support your intellectual property awareness needs. See http://creativethinking.nku.edu/ to complete our brief survey. As educators, we continue to inform our campuses and regional communities about the dual aspects of intellectual property (as creators and as consumers). In doing so, we build awareness and respect for the intellectual works of everyone.


[i]  Howard, Jennifer, “Publishers Sue Georgia State U. for Copyright Infringement,” Chronicle of Higher Education, April 16, 2008, http://chronicle.com/article/Publishers-Sue-Georgia-State/40816, accessed May 17 2012. There are two other federal copyright cases which librarians and educators are also watching very closely: Association For Information Mediat and Equipment et al v. The Regents of The University of California et al; and Authors Guild et al. v. HathiTrust et al. These cases deal with similar instructional issues which involve video content streaming for classroom support and a public accessible virtual collection of over nine million digitized works from college libraries. Including GSU, these cases will ultimately affect how educators utilize fair use and follow related copyright laws in the classroom.

[ii] John Schlipp, “Coaching Teaching Faculty: Copyright Awareness Programs in Academic Libraries,” Kentucky Libraries 72 (Summer 2008): 18-22.

[iii] Kenneth D. Crews, Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions,(Chicago: American Library Association, 2012), page xii.

[*] John Schlipp is an Associate Professor of Library Services and manager of the new IPAC (Intellectual Property Awareness Center) at Steely Library, Northern Kentucky University (Highland Heights). Formerly he served as Patent & Trademark Librarian at the Public Library of Cincinnati. Prior to receiving his MSLS from the University of Kentucky in 2000, he worked in the communications industry for 15 years. Schlipp’s contributions include: articles and book reviews; an intellectual property awareness program for teens and young adults entitled Creative Thinking; associate editor of the Encyclopedia of Northern Kentucky (University Press of Kentucky, 2009), and a chapter in the textbook Distributed Learning Librarianship (Sharon Almquist, ed., Libraries Unlimited, 2011).

A Paralegal’s Burden: Social Media’s Threat to Personal Privacy

Guest Blog by Fiona Causer

With the convenience and popularity of social interaction online comes critical and well-founded concerns regarding the right of citizens to personal privacy.  Given that the right to privacy and freedom of speech are foundational values to promoting a free, American life, the widespread popularity of social media presents new challenges to legal professionals to defend and uphold these values.   Law schools, traditional paralegal training programs and even online paralegal training programs are now burdened with the task of properly educating their students to approach and tackle these privacy issues head-on.  Social networks will only continue to grow in popularity, and being that they are for-profit ventures, the public cannot depend on them to protect its privacy.

Most social networks include in their Terms of Service agreements provisions for ownership of data. More often than not, companies that own social networks own the user data published and accessed through them. The data in question could be as innocuous as friend lists, interests as they relate to advertising and patterns of Internet activity. However, the ownership by social media companies of other, more personal data presents complications regarding First and Fourth Amendment rights.

When a Facebook user establishes an account, their date of birth, relationship status and partner (and therefore, sexual orientation), contact information and work history are requested. Input of each of these identifiers is optional, but in the context of interacting with friends and family, the request seems harmless enough.

However, disclosing this information can lead to legal challenges down the road. When a user uploads a photo, mentions a problem at work or admits to witnessing or committing a crime, identifying information can be used by employers and law enforcement to conduct an investigation without knowledge of the investigated, presenting two issues of legal concern: unnecessary search and seizure, and impingement on Freedom of Speech.

Questions about social media and free speech first gained national attention in cases where employees of private institution faced punishment or termination for comments made or pictures posted on social sites, including Twitter, Facebook and MySpace. First Amendment rights are limited in the private sector, and companies have no obligation to protect Freedom of Speech as it relates to the workplace, as addressed in an article on the Employment-at-Will Doctrine by the University of Washington Law Review. But recent cases involving teachers at public institutions have raised questions regarding the use of social media to identify teachers with controversial views and target them.

Viki Knox, a New Jersey teacher was recently investigated for making anti-gay comments on her personal Facebook page, directed at the general public and not toward any student or member of her school’s administration. According to Huffington Post, the speech was protected by a New Jersey anti-bullying law because the comments did not interfere with her teaching of students. But the school board pursued the investigation, ultimately seeking to terminate the tenured Knox.

A “Teacher of the Year” award recipient named Jerry Buell was reassigned then suspended from his position at a high school in Florida for posting homophobic comments to his personal Facebook page, according to Huffington Post. Buell returned to the classroom several months later.

Employers, both public and private, are increasingly turning to social media to investigate current and prospective employees. While standard background check solutions like E-Verify and credit bureau requests are still common, searching Google and popular social networks offers a quick turnaround and a level of granularity not possible with more traditional investigatory methods.

Though most social network data is owned by the site(s) hosting it, the free access of data presents problems in that information irrelevant to a given investigation may be used to determine employment eligibility: Sexual orientation, marital status, personal interests, activities during personal time, and many other traits can be used improperly by public and private employers to disqualify job candidates or target existing employees for termination. Proving in a court of law that information, legally obtained, has been improperly used in the termination of an employee is close to impossible without the testimony of witnesses present during the collection of data.

Fiona Causer is currently a student pursuing her bachelor’s degree in Legal Studies.  She enjoys writing and seeks to use it as a vehicle to convey ideas and engage others in conversation about important issues of our current day and age. She may be reached at fiona.causer1@gmail.com.

Should the ease of finding information online lower a court’s standard of proof?

The information age has placed so much knowledge at our fingertips that it is often easy to simply accept what one finds online as true without any further inquiry. Perhaps if this was being done to confirm the week-end’s sports results, or the latest gossip surrounding Hollywood celebrities I would be less troubled then when courts begin to do the same thing. For better or worse as more and more courts and attorneys are turning to the Internet for fast, free information the notion of judicial notice is beginning to bend to embrace this new reality.

Traditionally, judges have been free to accept at face value certain pieces of information without further proffers of proof. This is known as taking judicial notice and is allowed under the rules of evidence in most if not all jurisdictions. For example the Federal Rules of Evidence 201(b) states that:

(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

 While this rule allowed courts to rely upon such traditional sources of information as the Oxford English Dictionary it is now being used (perhaps unintentionally) to give authority to various web based sources. Early in the information age web sites that were cited for the type of facts that were “not subject to reasonable dispute” were government web sites such as the Federal Reserve Board and the United States Naval Observatory. More recently courts have begun to allow for the citation of just about any web site with little or no real fact checking.

Some courts are resisting the notion that just because it can easily be found online it deserves judicial notice. The court in Flores v. Texas specifically declined to extend judicial notice to information found on Wikipedia. While the Flores court is to be applauded it appears to be on the losing end of this game. More recently the Eastern District of New York in the case of United States v. Sessa took judicial notice of distance by use of Google Maps claiming that “[c]ourts commonly use internet mapping tools to take judicial notice of distance and geography.” (see page 65 of the opinion).

The use of online sources as the basis for judicial notice will surely grow over time. I am not suggesting that we stop this growing practice, only that the courts take caution in what they decide is “not subject to reasonable dispute” because too often material from the Internet is posted with little to no editorial oversight. The information age has certainly made information easier to find, the challenge now is to make sure the courts maintain high standards as they decide what deserves judicial notice and what deserves to be relegated to the gossip pages.

– Post by Michael Whiteman, Associate Dean for Law Library Services & Information Technology