by Lee Gesmer | Dec 12, 2008 | CFAA
Suffice it to say, very few people realize that violating the “terms of use” (aka the small print that no one reads) on a web site may constitute violation of a federal law that has both criminal and civil penalties. Yet, this was the basis for the prosecution of Lori Drew, the woman who allegedly created a MySpace account under the name of “Josh Evans.” Using this account, Drew developed an online relationship with Megan Meier, a 13-year-old girl. “Josh Evans” said hurtful things to Megan, who took her own life.
Pamela Jones lays out the legal issues in this case on Groklaw, here, where she links to many key documents, and embeds the EFF’s amicus brief, in its entirety.
I was trying to figure out how to explain to you all that is involved in the case of the U.S. v. Lori Drew, the cyberbullying case that so many lawyers are expressing concerns about. I felt I needed a lawyer to explain it, but where would I find one who felt like doing some unpaid work, and over the Thanksgiving holiday to boot?
Then I had a brainstorm. I could show you the amicus brief [PDF] submitted in the case by the Electronic Frontier Foundation, the Center for Democracy and Technology, and Public Citizen, which was also signed by “14 individual faculty members listed in Appendix A who research, teach and write scholarly articles and books about internet law, cybercrime, criminal law and related topics at law schools nationwide”. Appendix A is at the very end. If you look at the list, you’ll see that it’s some of the finest and most knowledgeable lawyers and law professors specializing in cyberlaw. The brief was written by Jennifer Granick of EFF and Philip R. Malone of Harvard Law School’s Berkman Center for Internet and Society’s Cyberlaw Clinic.
I think when you read it, it will turn your hair white. Continue reading ….
by Lee Gesmer | Dec 11, 2008 | Antitrust
Whole Foods, in the wake of the D.C. Circuit’s decision reinstating (in a manner of speaking) the FTC’s challenge to the Whole Foods – Wild Oats merger, has filed a most unusual lawsuit in the federal district court in the District of Columbia. Whole Foods is seeking to terminate the FTC’s administrative proceedings investigating the merger. The stated grounds are violation of the Due Process Clause and the Administrative Procedure Act (the APA).
Here is a link to the complaint (scribd.com).
This lawsuit is unusual, to say the least. The essence of Whole Foods complaint seems to be that the FTC has prejudged the case and set an unreasonably aggressive discovery schedule. I’m not aware of any grounds for this legal theory at this stage of an administrative proceeding, but I’m sure that Whole Foods’ lawyers have done their homework, and that these claims have some legal merit. Stay tuned.
by Lee Gesmer | Dec 1, 2008 | Business Lit. Session, Courts
Today’s Boston Globe reports that Governor Deval Patrick will nominate Superior Court Judge Ralph Gants to the seat on the Supreme Judicial Court now vacated by Justice John Greaney. This is a great nomination – Judge Gants is truly a superstar of the Massachusetts Superior Court – without question one of the best, if not the best, minds on the state trial court. He has reportedly been on the “short list” of potential nominees for the last few weeks, and there was little question in my mind that he was the outstanding choice on that list. I expect his nomination to the SJC to be approved by the legislature in a heart beat.
Judge Judith Fabricant has been the number 2 judge in this session (the BLS2 session) since Judge Van Gestel’s retirement, but it’s unclear if she will provide what has become a tradition of leadership and excellence in the relatively short period of time since the BLS was created, or even whether she is interested in taking on the responsibility of leading the BLS. Being the “BLS1 Judge” is a significant commitment, and not every judge is well suited to this responsibility. Most of Judge Fabricant’s experience (before her appointment to the Superior Court in 1996) was as a criminal prosecutor and then an assistant attorney general. Whether she feels that she has the depth of experience appropriate to head the BLS remains to be seen.
It’s also worth observing that the Business Litigation Session is not a “statutory” court – it was formed in 2000 as a pilot project, and exists at the discretion of the Chief Justice of the Superior Court. Without a strong and committed leader (as Judge Van Gestel was), and as Judge Gants was beginning to prove himself to be), the future of the BLS is not certain.
So, the BLS’s loss of Judge Gants leaves the BLS in limbo – will Judge Fabricanttake over BLS1? If so, will she provide the level of quality provided by Allen Van Gestel and Ralph Gants? Who will become the new “number two” at the BLS?
Finally, it’s worth observing that the BLS appears to have emerged as a “feeder court” for the SJC – first Justice Margot Botsford (who was the BLS2 Judge before Gants), and now Judge Gants have gone from the BLS to the SJC. Whether this is coincidence (or whether the BLS attracts the best judges on the Superior Court) is open to debate, but the phenomenon is worth noting.
by Lee Gesmer | Nov 29, 2008 | Courts
“Parties are invited to cite to the Proposed Rules, whenever appropriate, in briefs and memoranda submitted.
Proposed Massachusetts Rules of Evidence (Supreme Judicial Court, December, 1982)”
“The provisions contained in this Guide may be cited by lawyers, parties, and judges, but are not to be construed as adopted rules of evidence or as changing the existing law of evidence.
Massachusetts Guide to Evidence, Section 1.1 (Supreme Judicial Court, November 2008)”
History does not repeat itself, but it does rhyme
Mark Twain
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On November 24, 2008, the Massachusetts Supreme Judicial Court issued a press release stating that “The Supreme Judicial Court and its Advisory Committee on Massachusetts Evidence Law today announce the release of the Massachusetts Guide to Evidence. The Supreme Judicial Court recommends the use of this Guide.” The press release quotes Chief Justice Margaret Marshall, who states: “This new Guide will make the law of evidence more accessible and understandable to the bench, bar and the public.
Anyone reading this with some historical perspective has to wonder, and here’s why.
The Federal Rules of Evidence (FRE) were enacted into law in 1975, after ten years of preparation. This was a very big deal – the rules codified centuries of “common law” of evidence – judge-made law that could vary from court to court. It had taken almost 40 years from the enactment of the Federal Rules of Civil Procedure for these evidence rules to be codified. The FRE motivated many states (whose evidence laws are independent from the federal rules and from each other) to adopt some version of the FRE, often with modifications, but with enough uniformity that a lawyer going from state A to state B could be confident that the vast majority of the rules would be identical or similar. Forty-two states have adopted evidence rules based on the federal rules.
Only eight states have failed to do so and, no surprise, Massachusetts is one of them.
But, it hasn’t been for want of effort.
In 1982 the SJC rejected a proposed codification of evidence law (what would come to be referred to as the Massachusetts Proposed Rules of Evidence, or the “Proposed Rules”), stating that the Proposed Rules would require coordination with the Legislature to modify state statutes, that the Proposed Rules departed too much from the FRE, and that adoption would restrict the development of common law rules of evidence (the latter being the whole point, one might argue). (See Handbook of Massachusetts Evidence, Section 1.1). However, the SJC invited litigants to cite the rules, and for that reason the Proposed Rules have been a factor in Massachusetts evidence law for the last 26 years.
In fact, it became common practice for lawyers and judges to use three bodies of law to support evidentiary arguments – the common law, the Federal Rules, and the Proposed Rules. And so, in Massachusetts, the law of evidence advanced in a patchwork manner, with trial judges and the appellate courts adopting some rules from either source, rejecting others, and no one quite sure what body of law would be persuasive in a particular instance. The authors of various evidence treatises were kept busy trying to keep track of these developments, so lawyers didn’t have to untangle this mess.
Of course, nothing is forever, and there’s no reason why the Massachusetts courts should be hindered by efforts that are now ancient history. And so, it came to pass that in 2006 the SJC established an advisory committee to develop a “Guide” to evidence, leading to the SJC’s endorsement of the Guide to Evidence in November 2008.
While the Guide is not statutory law in Massachusetts (and therefore is not strictly “binding” on the courts), it appears that everyone involved in its creation and endorsement has decided that it is an accurate statement of the law, at least at this time. Therefore, it is the “most” persuasive statement of the law on any topic of evidence, at least for the time being. Of course, not being statutory law, any judge or court can chose to disregard it – in fact, a future SJC could easily rule that a particular provision of the Guide (or even the entire Guide) is no longer useful, and relegate the document to the legal dust bin.
However, at least for the present, the Guide to Evidence should be the first (but not the last) place any lawyer with an evidentiary question should go to get a handle on the law. Hopeful, the Proposed Rules are now obsolete, and lawyers can ignore them, but I wouldn’t count on it.
by Lee Gesmer | Nov 27, 2008 | Noncompete Agreements, Patents
If you’re a federal district court, that is.
The answer? You need something not every federal district has. The Eastern and Southern Districts of Texas have them. The Northern District of California has them. The Districts of Pennsylvania (Western), Georgia (Northern) and Illinois (Northern) have them. In fact, so many U.S. District Courts have them that its getting difficult to keep up. Like so many things in life, at first its an advantage to have them, and eventually it becomes necessity.
And now the U.S. District Court for the District of Massachusetts has them.
What are they? Local procedural rules that apply only to patent cases. Local patent rules recognize that patent cases present legal, technical and discovery issues that call for specialized handling. In most jurisdictions these rules require early claim identification and invalidity defenses, attempt to schedule early claim construction (by the Court or by stipulation of the parties) and generally attempt to speed up the patent litigation process. After all, plaintiffs tend to seek out jurisdictions where they can get to trial as quickly as possible, since delay only increases expenses, while speed tends to lead to settlements.
Frankly, the Massachusetts local patent rules appear on the weak end of the spectrum – they focus entirely on the initial Local Rule Rule 16.1 statement to the court, and require the parties to propose a schedule for disclosure of infringement claims and invalidity defenses, address issues associated with claim construction and tutorials for the Court (somewhat common in patent suits), and address various discovery-related issues. By contrast, the Patent Rules in the Eastern District of Texas (which attracts a great deal of patent litigation), sets strict requirements that far exceed the Massachusetts rules.
It’s unlikely that that the Massachusetts patent rules will turn Massachusetts into a hotbed of patent litigation, but you’ve got to start somewhere. Perhaps this will prove to be the first step toward rules that will turn Massachusetts into the “rocket docket” so admired by plaintiffs lawyers and feared by defendants.
