Year: 2014

The Costs of E-Discovery

January 27, 2014 Administrator Leave a comment eDiscovery Tech

Costs of keyword searching, data analysis, not recoverable, Federal Circuit rules (Robert Ambrogi, 18 Dec 2013) – To what extent can the costs of e-discovery be recovered by a prevailing party in federal court? The U.S. Federal Circuit Court of Appeals has just issued an opinion that provides a detailed analysis of that question, concluding that the answer hinges on which costs fall within a 21st Century definition of “copying.” In CBT Flint Partners, LLC v. Return Path, Inc. , the Federal Circuit considered the extent to which e-discovery costs fall under28 USC § 1920 , the federal statute that lists the costs that can be recovered in federal litigation. The only provision of that statute that would apply to e-discovery, the circuit concluded, is one that allows recovery of copying costs. Thus, e-discovery costs are recoverable only to the extent they fall within the statutory meaning of copying. [W]e conclude that recoverable costs … are those costs necessary to duplicate an electronic document in as faithful and complete a manner as required by rule, by court order, by agreement of the parties, or otherwise. To the extent that a party is obligated to produce (or obligated to accept) electronic documents in a particular format or with particular characteristics intact (such as metadata, color, motion, or manipulability), the costs to make duplicates in such a format or with such characteristics preserved are recoverable. … But only the costs of creating the produced duplicates are included, not a number of preparatory or ancillary costs commonly incurred leading up to, in conjunction with, or after duplication. That means that the costs of imaging hard drives and source media and processing those images would be recoverable in most cases, the court said. Also recoverable would be the costs of creating load files and copying responsive documents to production media. But the costs of decryption, deduplication, keyword searching, data analysis and project management are not recoverable, the court concluded.

Provided by MIRLN.

Image courtesy of FreeDigitalPhotos.net/hyena reality.

Email And When Your 4th Amendment Rights Might Run Out

January 23, 2014 Administrator Leave a comment Justice

Senders’ Fourth Amendment rights in e-mails seized from the e-mail accounts of recipients (Volokh Conspiracy, Orin Kerr, 26 Dec 2013) – A recent case, United States v. Young (D. Utah, December 17, 2013) (Campbell, J.), touches on a novel, interesting, and quite important question of Fourth Amendment law: Assuming that e-mail account-holders generally have Fourth Amendment rights in the contents of their e-mails, as courts have so far held, when does a person’s Fourth Amendment rights in copies of sent e-mails lose Fourth Amendment protection? To understand the question, consider Fourth Amendment rights in postal letters. Before a letter is sent, only the sender has rights in the letter; during transmission, both the sender and recipient have rights in the letter; and once the letter is delivered at its destination, the recipient maintains Fourth Amendment rights but the sender’s rights expires. But how do you apply this to an e-mail? By analogy, a sender loses Fourth Amendment rights in the copy of the e-mail that the recipient has downloaded to his personal computer or cell phone. But does the sender have Fourth Amendment rights in the copy of the e-mail stored on the recipient’s server after the recipient has accessed the copy? And does the sender have Fourth Amendment rights in the copy of the e-mail stored on the recipient’s server before the recipient has accessed the copy? At what point does the sender’s Fourth Amendment rights in the sent copy expire? * * *

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Image courtesy of FreeDigitalPhotos.net/nixxphotography.

Blogging For CLE Credit

January 22, 2014 Administrator Leave a comment Tech for Lawyers

Can law blogging qualify for CLE credits? (Kevin O’Keefe, 4 Jan 2014) – Historically, education has taken place in the classroom with live speakers or recordings. With the advent of the Internet lawyers are now taking CLE classes online as well. Beyond classes, some states allow lawyers to earn credits by writing legal articles. The articles need not be law review or law journal quality or length. The articles need not be exclusively for other lawyers. In my first company, Prairielaw.com, the precursor to lawyers.com’s content and community, we had lawyers author content for consumers and small business people. Lawyers practicing in states which allowed it, earned a CLE credit for each of their articles. Such content was written and contributed by the lawyers, in part, as a means of enhancing their reputation as a reliable and trusted authority. The lawyers also contributed their articles as way to gain additional exposure online. Sounds an awful lot like lawyers publishing a blog. Would law blog articles/posts qualify for CLE credits? I took a quick look at various states’ positions on allowing lawyers to claim CLE credits for writing legal articles.

  • Tennessee : Writing articles concerning substantive law, the practice of law, or the ethical and professional responsibilities of attorneys may qualify for CLE credit if the articles are published in approved publications intended primarily for attorneys.
  • Maine : The writing of law related articles for publication will not be automatically approved for CLE credit. Authors requesting such credit must submit a copy of the article after publication for evaluation by the Board to apply toward only the self-study portion of the attorney’s annual CLE obligation.
  • Georgia : May earn credits in researching and writing articles provided that (1) the article or treatise’s content and quality are consistent with the purposes of CLE, (2) it is published in a recognized publication which is primarily directed at lawyers, and (3) the project was not done in the ordinary course of the practice of law, the performance of judicial duties, or other regular employment.
  • California : May get credit for articles published or accepted for publication that contributed to your legal education, exclusive of activity which is part of your employment.

You get the idea. Yes, lawyers may and do earn CLE credits for writing articles. At the same, though blog posts are arguably legal articles, you can see the hurdles and how states are apt to respond.

Provided by MIRLN.

Image courtesy of FreeDigitalPhotos.net/Stuart Miles.

Who owns your tattoo?

January 21, 2014 Administrator Leave a comment Copyright

Tattoo artists are asserting their copyright claims (ABA Journal, 1 Jan 2014) – One day you’re feeling bold, or perhaps temporarily insane, and you walk into a tattoo parlor to get inked up. Congratulations, you’re the proud owner of the art now displayed on your skin and you can flaunt it however you wish. Not so fast. A growing body of case law derived from a series of high-profile lawsuits suggests that ultimately it’s the tattoo artist-not the person who bears the tattoo-who owns the rights to that tattoo. Copyright law protects original works of authorship fixed in any tangible medium of expression, including anything from paint on a canvas to sculpted clay to a piece of music. And now it’s increasingly clear that the law also applies to ink on skin. In 2012, a tattoo artist who inked mixed-martial-arts fighter Carlos Condit sued video game maker THQ Inc. for depicting Condit’s lion tattoo on a game character resembling the fighter. Also, the National Football League Players Association has warned players to seek copyright waivers from their tattoo artists to guard against lawsuits in the event images of the tattoos are used-intentionally or not-in advertisements, video games and other media. Lawyers foresee copyright waivers becoming a fixture in tattoo parlors. “I don’t doubt that in many larger tattoo parlors it will become standard that some type of document is presented to those who are going to have tattoos put on them stating that those tattoos have been created by the tattoo artist or the parlor,” says entertainment lawyer Jerry Glover of Leavens, Strand, Glover & Adler in Chicago.

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Image courtesy of FreeDigitalPhotos.net/mapichai.

“Border Exemption” In The Digital Age

January 17, 2014 Administrator Leave a comment Security

Court upholds willy-nilly gadget searches along US border (Wired, 31 Dec 2013) – A federal judge today upheld a President Barack Obama administration policy allowing U.S. officials along the U.S. border to seize and search laptops, smartphones and other electronic devices for any reason. The decision (.pdf) by U.S. District Judge Edward Korman in New York comes as laptops, and now smartphones, have become virtual extensions of ourselves, housing everything from email to instant-message chats to our papers and effects. The American Civil Liberties Union brought the challenge nearly three years ago, claiming U.S. border officials should have reasonable suspicion to search gadgets along the border because of the data they store. But Judge Korman said the so-called “border exemption,” in which people can be searched for no reason at all along the border, continues to apply in the digital age. Alarmingly, the government contends the Fourth-Amendment-Free Zone stretches 100 miles inland from the nation’s actual border . The judge said it “would be foolish, if not irresponsible” to store sensitive information on electronic devices while traveling internationally. [ Polley : ABA members might read my article on international travel with e-devices here .]

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Image courtesy of FreeDigitalPhotos.net/renjith nattavut.

FinCEN Ruling Bodes Well For Bitcoin Mining

January 16, 2014 Administrator Leave a comment Finance

FinCEN issues Bitcoin-friendly ruling for miners (CoinText, 27 Dec 2013) – The US Department of Treasury, Financial Crimes Enforcement Network ( FinCEN ) has issues ruling that clears up an issue for Bitcoin mining. The issue involves whether someone who mines Bitcoins for themselves can trade them for cash at an exchange or spend them directly without being classified as a Money Services Business (MSB) and register with FinCEN. Many miners were concerned that the rules would require compliance with extensive regulations (see Jerry Brito, FinCEN explicitly stated in a personal letter that bitcoin miners need to register with FinCEN ). The rules could require miners to have things like an auditor on staff making it impossible for individuals to mine Bitcoins and stay within the regulations. Atlantic City Bitcoin operates several ASICs miners at its facility in New Jersey and asked FinCEN to clarify the rules. The owner of AC Bitcoin is a former federal employee who worked on anti-terrorism and security programs and took early retirement to work on Bitcoin. According to the formal Administrative Ruling miners do not have to register with FinCEN as previously thought as long as they mine for themselves. AC Bitcoin had frequent contact with FinCEN staff and pointed out that if FinCEN had required miners to register they would need to comply with the “Administrative Procedures Act” which would require them to consider public comments before making the requirement.

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Image courtesy of techinasia.com/bitcoin-illegal-thailand/cdn.btcpedia.com.