S.D.N.Y. Affirms Order To Microsoft To Hand Over Data Stored Overseas Pursuant To A Stored Communications Act Warrant

Author: Scripta Ad Astra Staff

On Thursday, July 31, 2014, Microsoft lost a challenge to an April 25, 2014 order denying its motion to quash a subpoena issued by the federal government pursuant to the Stored Communications Act (“SCA”) for email communications located on Microsoft servers in the Ireland.  Issuing her ruling from the bench, U.S. District Judge Loretta Preska stated that “Congress intended in this statute for ISPs to produce information under their control, albeit stored abroad, to law enforcement in the United States … As [Magistrate Judge James Francis IV] found, it is a question of control, not a question of the location of that information.”

Luckily for Microsoft, Judge Preska stayed the implementation of her ruling so that Microsoft could appeal to the Second Circuit.  While we wait for that to occur, it might be worthwhile to go back and examine what Judge Francis’ April 25, 2014 Order said.

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Controlling Your Client’s Web Presence is Key for Plaintiffs

Author: Katy M. Young

I had previously blogged about the dangers of blowing your defense (or even inviting a lawsuit) based on social media activities. This post will examine the importance of controlling your client’s web presence when your client is the Plaintiff. In a lawsuit, the Plaintiff usually has the harder job because it is Plaintiff’s burden to prove each element of her cause of action and her damages by a preponderance of the evidence. Defendants sometimes have an easier time since a verdict in Defendant’s favor can be achieved by knocking out elements of a Plaintiff’s claim. Evidence comes in many forms, and these days, the internet is fertile ground for evidence gathering.

Recently, I represented a Defendant in a lawsuit filed by someone he used to be very close to. The Plaintiff claimed millions of dollars in damages and even put on expert witness testimony to justify the multi-million dollar demand. Both parties had previously been very active internet users, but once he was named in the lawsuit, my client heeded my advice to shy away from social media lest he make matters worse for himself. Plaintiff’s lawyers were able litigators and I am certain that they gave their client the same warning, but their client did not listen. Perhaps she didn’t understand that information found online is akin to shouting the same message in ye olde public square. Perhaps she was lulled into believing her activities would go undiscovered because she didn’t use her real name as her username and the damning information was located on a dating website. Perhaps she underestimated Ad Astra Law Group’s abilities to track her online. What is certain is that Plaintiff posted information on her online dating profile which directly undercut her expert witness’ testimony about the extent of her damages. Perhaps she was lying to her potential dates about the true state of things. Perhaps she lied to the expert witness who rendered the opinion on her damages. What is certain is that she lied to someone, and all that mattered was that she lied. It didn’t so much matter whether what she posted was true, it was simply that what she posted contradicted her expert’s testimony on damages. Even if she could have proven that the Defendant was liable for her harm, the jury wouldn’t have known what to believe about the extent of her damages. The Plaintiff had badly damaged her own credibility. The case settled quickly after our online discovery.

A word to the wise: the web is the modern town square and anything you say there can come back to haunt you. Whether Plaintiff or Defendant, the best practice is to cease your online activity entirely- but don’t delete what you previously posted, for you may end up spoliating evidence…but that is a blog post for another time!

Federal Judge Rules Against NCAA In Antitrust Lawsuit

Author: Wendy Hillger & Scripta Ad Astra Staff

It has been a little over a week since U.S. District Judge Claudia Wilken of the Northern District of California issued her August 8, 2014 landmark ruling against the National Collegiate Athletic Association (“NCAA”) in O’Bannon v. NCAA.  While it is too early to know the ramifications of the ruling (the NCAA has already stated it will appeal), the opinion has roundly been seen as favorable for collegiate athletes.

How The Challenge Started
The road to get to this ruling did not start with the lead plaintiff, former UCLA basketball star, Ed O’Bannon, simply filing suit.  Rather, Mr. O’Bannon stood on the accomplishments of an evolution in public opinion and challenges that chipped away at the NCAA’s “defense of amateurism”.

The challenge to NCAA’s reign was, in part, started by the very man who helped commercialize college sports, Sonny Vaccaro.  After spending decades building endorsement relationships between shoe companies such as Nike, Adidas, and Reebok, with universities all over the country, Mr. Vaccaro eventually soured on what he saw as colleges taking advantage of athletes. While universities and the NCAA were making money hand-over-fist from merchandising, television rights, and other endorsement deals, they were withholding those revenues from the athletes (called “student-athletes” by the NCAA for the purposes of avoiding paying workers compensation insurance), suggesting that these athletes were playing as students and amateurs, not professionals, and thus not entitled to that money.

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Four Key Ways Attorneys Can Help an Expert Witness Perform their Best

Scripta Ad Astra is extremely pleased to present a guest post by Michal Longfelder, Esq.  Ms. Longfelder is an expert witness in the field of HR law and workplace investigations.

Author: Michal Longfelder, Esq.

We, as expert witnesses, often provide a necessary and critical part of your litigation strategy. By speaking to unique questions or facts, we can be a significant element of a successful outcome.

 

1. Know why you want me as your expert witness and for what purpose

Like most expert witnesses, while I can opine on a range of subject matters; I need to know exactly how I can be most helpful.  Take the time to learn about and understand my background so you are sure that I am best suited for this case.    For example, many attorneys do not realize that the HR function has evolved into specific areas of specialization and, as a result, many HR professionals no longer have a broad generalist background but rather, a narrow, expertise in a particular HR function such as organizational development.  If your case requires expertise in disability accommodations, make sure that the expert has substantial experience in that particular sphere of the HR function.

2. Retain me as a consultant in advance of retaining me as an expert

Many attorneys, in an earnest effort to keep litigation costs down, do not retain an expert until shortly before depositions begin.  By retaining me as a consultant early on and under your direction, earlier, we will both know how I view your case’s relative strengths and weaknesses without being subject to discovery.  Questions such as whether there are enough “good facts” to make it worth litigating are better answered sooner than later. Retaining me early as a consultant also affords you the opportunity to consider the settlement value of your case or whether my opinions have implications for other aspects of your litigation strategy.

When carefully selected and utilized, expert witnesses can strengthen your case to opposing counsel and a jury.   By planning in advance why, when and how to make the best use of my expertise and experience, you and your client will have confidence in the expert witness you have selected.

3. Take the time to prepare me for deposition

I am also an attorney, so counsel often assumes I do not require much, if any, prepping for deposition.  Here, you are the expert on the case and I need to learn from you.  Tell me about the weaknesses you perceive will be a challenge. Most importantly, tell me what questions I should expect from opposing counsel so I can think about how I will respond.

4. Think about my role at trial

Will you want me in the role of “storyteller” who summarizes the relevant information and provides guidance as to how the jury should assess and interpret the information presented by others?  Or would I be more useful testifying on a discrete but critical issue in the case?  Perhaps I will be part of building the facts necessary to effectively try or defend the case?  Finally, consider whether I will be more effective testifying for a shorter or extended period of time.

Summary:

When carefully selected and utilized, expert witnesses can strengthen your case to opposing counsel and a jury.   By planning in advance why, when and how to make the best use of my expertise and experience, you and your client will have confidence in the expert witness you have selected.

 

Michal Longfelder, founder and principal of Employment Matters, is an employment attorney with an exclusive focus on workplace investigations, internal mediations and executive coaching.   She may be reached at WWW.EMPLOYMENTMATTERS-ML.COM michal@employmentmatters-ml.com

Tel: 415-297-3285

 

Ninth Circuit Finds That FedEx Drivers Are Employees and Not Independent Contractors

Author: Scripta Ad Astra Staff

An interesting opinion in Alexander v. FedEx came out of the Ninth Circuit on Wednesday holding that FedEx drivers and delivery people were improperly classified as independent contractors instead of employees because of the level of control that FedEx maintains over those drivers.  I find the opinion “interesting” because I never would have thought the people driving in the FedEx branded trucks, FedEx branded uniforms, using FedEx technology, delivering packages to FedEx customers in areas designated by FedEx, on FedEx’s schedule, would have been classified as anything other than an employee.

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The Legislature’s (Temporary) Overhaul of the Demurrer Procedure

Author: Scripta Ad Astra Staff

A party in a civil action may object to a complaint, cross-complaint, or answer by demurrer. (See Cal. Code Civ. Proc. § 430.10.) Demurrers are typically filed when the responding party alleges the pleading fails to state a cause of action. Unless the complaint fails to state a claim based on any legal theory, and the defect cannot reasonably be cured by amendment, the court will give the responding party leave to amend. Subsequent amended pleadings are vulnerable to subsequent demurrers, and extend the time the case is pending. This motion work is expensive to litigants, and clogs the already over-burdened court system.
The Legislature passed amendments to the demurrer procedure effective January 1, 2016 through January 1, 2021, at which point the statute will self-repeal its provisions. (See Cal. Code Civ. Proc. §§ 430.41, 472, and 472a.) In most civil actions,[1][1] the parties are now required to engage in a specific meet and confer process before filing a demurrer. The court has the authority to order the parties to a conference to continue the meet and confer process. The amendments also create a “three-strikes-and-you’re-out” limit to the number of times a party can amend its complaint in response to a demurrer filed before the case is at issue, and place a new time limit on the responding party’s ability to file an amended pleading prior to the hearing on demurrer. Now, the amended pleading must be filed and served before the date for filing an opposition to the demurrer. The amendments also limit the grounds upon which a party demurrers to an amended pleading following a sustained demurrer to issues that could not have been raised by the prior demurrer.

Time will tell whether these amendments will provide a substantive filter to the demurrer process, and help decrease the court backlog in Law and Motion Departments.

[1][1] This section does not apply to the following civil actions: (1) An action in which a party not represented by counsel is incarcerated in a local, state, or federal correctional institution; and (2) A proceeding in forcible entry, forcible detainer, or unlawful detainer

Ninth Circuit Affirms That Yelp! Can Use Hardball Sales Tactics To Sell Advertising To Businesses

Author: Scripta Ad Astra Staff

On Tuesday, the Ninth Circuit affirmed a district court ruling in Levitt v. Yelp! Inc. dismissing an action by a group of small businesses that Yelp! extorted, or used extortionate sales tactics, to induce small businesses to purchase advertising with Yelp! in violation of the federal Hobbs Act (civil extortion) and the California Unfair Competition Law. The plaintiffs generally claimed that Yelp! sales people contacted them about purchasing advertising services in connection with their Yelp! pages. When the plaintiffs declined to purchase the advertising, the plaintiffs alleged that Yelp! manipulated its service to lead to a downgrade in the businesses ratings. The plaintiffs alleged that such tactics included removing positive reviews, re-posting negative reviews that had previously been taken down, allowing more negative reviews to appear first, and even authored negative reviews.

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Tips to Help Your Organization Become Data Breach Ready in 2016

Author: Meaghan Zore

Are you ready for a data breach?  At least 222 data breaches occurred in 2015 affecting at least 159,436,735 records, according to the Privacy Rights Clearinghouse, a California nonprofit corporation that tracks trends in data privacy. There’s little reason to believe that 2016 is going to see a downtrend in these numbers. Already this year, Time Warner Cable reported a data breach that affected 320,000 of its customers’ records.[1] Given these numbers, it’s no longer a question of “if” a system will be breached, but “when.”

January 28th is Data Privacy Day.  Here are 3 steps to becoming data breach ready in 2016:

  • Establish a Privacy Training and Awareness Program

When we hear of data breaches, often, the image of a nefarious hacker comes to mind. However, 91 of the 222 data breaches in 2015 were caused by unintentional actions, such as misdirecting emails containing sensitive information, lost laptops or smartphones, and improper disposal of non-electronic data. These poor data handling practices resulted in a minimum of 6,090,152 breached records. Having a world-class privacy policy is useless if your organization’s employees are unable to put the policy into practice. When employees understand your organization’s data handling expectations, including how to effectively implement your company’s privacy policy into their day-to-day work practices, data breach incidents decrease.

  • Conduct a Privacy Impact Assessment

A Privacy Impact Assessment (PIA) is an analysis of how personally identifiable information is collected, used, shared, and maintained within an organization. Examples of various PIAs can be found on the Federal Trade Commission’s website. You can use a PIA to manage data risks and assess the benefit of engaging in certain data handling practices. Conducting a PIA will help you to better understand and address your company’s  vulnerabilities.

  • Develop a Data Breach Response Plan

A data breach response plan is a course of action intended to reduce the risk of unauthorized data access and to mitigate the damage caused if a breach does occur. At a minimum your data breach response plan should consist of the following: (1) a point person to take charge in the event of a data breach and act as a liaison between various stakeholders and partners; (2) contact information for relevant stakeholders and third-party service providers; (3) procedures for analyzing and containing the damage caused by a suspected data breach; (4) measures to mitigate the damage done and prevent future breaches; and (5) relevant insurance and credit bureau information.

In 2015, companies incurred an average cost of $154 per breached record and were exposed to a consolidated total cost of $3.8 million per data breach.[2] Breaches are going to happen, but preparation will be key to minimizing the damage done to your organization and your clients in 2016 and beyond.

About the author:  Meaghan Zore, founder and principal of Zore Law, advises entrepreneurs and emerging companies on a wide range of legal matters such as business formations, intellectual property issues, commercial agreements and data and privacy considerations. In addition to her practice, she teaches Advanced Civil Procedure: Electronic Discovery and Information Privacy law at Indiana University Robert H. McKinney School of Law.  She may be reached at www.zorelaw.com meaghan@zorelaw.com. Tel: 415-347-0004

 

[1] http://www.privacyrights.org/data-breach

[2] http://www-03.ibm.com/security/data-breach/

Back to School Special on Estate Plans

Author: Katy M. Young

As summer comes to an end and we all go back to school in one form or another, it is time to revisit the good old to-do list. Is an estate plan on your to-do list? If you are a business owner, an estate plan that addresses business succession is critically important. If you own a home, the only way to avoid probate is by creating a trust. If you have children, an estate plan is the only way to ensure your control over who becomes your child’s guardian should anything happen to you. Ad Astra Law Group, LLP is offering a back to school special on estate plans completed in August and September 2014.

What is an estate plan? Ad Astra Law Group, LLP offers a comprehensive estate plan package that will protect you, your loved ones, and your assets should tragedy strike. We’ll prepare a trust and a will to address what happens when you pass away. We also create advance health care directives and powers of attorney to protect you in case you become incapacitated. Our lawyers will educate you about the process, guide you through tough decisions, and perform a signing ceremony with a notary to complete the estate plan package. The whole process takes about a month from start to finish.

The attorney fees for probate cases are set by law and are quite high, plus the probate process can take as long as a year or more. For most people, we can create a comprehensive estate plan for about 1/3 of the minimum probate attorney fee and save you the hassle of dealing with probate while grieving. For estate plans completed in August and September 2014, we are offering a 20% discount. Creating your estate plan will bring you peace of mind and it is a great investment in your family’s future. Contact us today to discuss your estate planning needs!

Fee Arbitration: What is a “True Retainer”?

Author: Katy M. Young

Ad Astra Partner Katy Young represented pro bono client R. Martinez in a fee arbitration against her daughter’s former criminal defense attorney and reached a settlement whereby the attorney agreed to pay back every dime that Mrs. Martinez disputed at arbitration- and then some!

Mrs. Martinez’ daughter had been charged with murder in Alameda County. The Martinez family cobbled together nearly everything they had to write a check for the attorney’s $25,000 retainer. Mrs. Martinez alleged that she never signed any written agreement with the attorney, but that the attorney had said he would represent Mrs. Martinez’ daughter up to, but not including, trial. Over the course of the next year, Mrs. Martinez felt that this attorney was not an effective advocate for her daughter and made some crucial substantive and procedural errors.

Eventually, Mrs. Martinez retained The Worthington Law Centre, friends of Ad Astra and stellar criminal defense attorneys with offices in Salinas and San Francisco. When Tom Worthington took over Mrs. Martinez’s daughter’s defense, The Worthington Law Centre contacted Ad Astra for assistance in recovering the unused portion of Mrs. Martinez’ $25,000 retainer which was being held by the previous attorney who maintained that the $25,000 was non-refundable, which in ethics parlance means that he asserted that the $25,000 was a “true retainer.”

In response to Ad Astra’s inquiries, the attorney produced to us a document that he claimed was the written fee agreement between he and Mrs. Martinez, but which listed the $25,000 retainer as having been paid by credit card and non-refundable, but that he would represent the client up until the trial at which point a further retainer would be required. Upon questioning, the attorney eventually admitted that this purported fee agreement had not been signed by his actual client- Mrs. Martinez’ daughter- but nevertheless maintained his position that the agreement was valid and entitled him to keep all $25,000 in the face of Mrs. Martinez’ allegation that he owed her a $19,000+ refund. In the fee arbitration papers, Ad Astra’s Katy Young had argued that the attorney owed Mrs. Martinez over $19,000 for failure to have a signed fee agreement with his actual client (and not just the payor), producing a fraudulent document purporting to be a fee agreement between he and Mrs. Martinez, failing to keep contemporaneous time records, and for improperly characterizing the $25,000 as a true retainer when it did not meet the one criterion for true retainers: the retainer was for his time on the matter up to trial and not for his continued availability regardless of time billed. True retainers are actually quite rare since they simply ensure the attorney’s availability to work for the client and have no bearing on any actual work performed. In other words, if the retainer is payment for work then it is not a true retainer and must be refunded to the extent that the attorney’s work was worth less than the retained amount.

Finally, the parties went to fee arbitration through the State Bar of California. On the day of the arbitration, the appointed arbitrator encouraged the parties to try to settle before commencing the proceeding after expressing doubts about the attorney’s defenses. After 15 minutes of discussions with Katy Young, the attorney agreed to pay back all $19,000 that Mrs. Martinez had requested, plus the filing fee for the arbitration!

Attorneys: beware the “true retainer” and always keep contemporaneous time records, even if your case is flat-fee or contingency.

Clients: always get a written agreement with your attorney, be sure to read it and question it where you feel you need more information, and negotiate the terms if anything is unacceptable to you. Make sure you know what you are getting into!