A Post-Riley Analysis: Smartphone and Social Media Discovery

As you know, we here at Abnormal Use love writing and blogging, so much so that our editor Jim Dedman is now contributing posts to other venues.  Recently, his piece, “A Post-Riley Analysis: Smartphone and Social Media Discovery,” was published in the October 2014 issue of the Defense Research Institute’s For The Defense magazine. In the piece, he explores the potential civil implications of the U.S. Supreme Court’s recent opinion in Riley v. California, 573 U.S. ___ (2014),  in which the Chief Justice Roberts noted the extent to which we now utilize our smartphones and the privacy interests at stake in any search of such devices. The article recognizes that those very privacy interests may alter the way in which courts analyze social media and smartphone discovery.

Here’s the first bit of the article:

Litigants now live much of their lives online or through the prism of their smartphones. Knowing this, defense lawyers often attempt to obtain as much digital discovery as possible in an effort to impeach the claims of a plaintiff, whether it is in the form of social media discovery or information extracted from a smartphone. Despite the fact that plaintiffs’ lawyers now warn their clients of such efforts, plaintiffs still live their lives online at the risk of their recovery in their lawsuits.

With state and federal courts now routinely ruling upon the permissible scope of such discovery requests, defense counsel must be aware of the potential backlash against these efforts in light of increasing concerns about the private nature of such information, and especially those recently expressed by the U.S. Supreme Court.

For the rest of the article, you’ll need to find a copy of this month’s issue of DRI’s For The Defense. For some of you, this issue is waiting in your inbox right now. Check out page 60.

Tech Companies To Litigate Unpaid Royalties

Two kings of the tech world will reportedly duke it out over allegedly unpaid royalties.  In the suit, filed in federal court in New York, Microsoft alleges that it entered into a patent-sharing agreement in 2011 by which Samsung was to pay Microsoft a royalty for every Android phone it sells.  This was purportedly part of an effort to “work together to develop and market Windows Phone, Microsoft’s mobile software.” Microsoft alleges that Samsung failed to make a royalty payment on time and refused to pay interest on the late payment.  The original “heavily redacted complaint” alleges that Samsung has attempted to use Microsoft’s acquisition of Nokia’s phone business as an excuse for not complying with the patent-sharing agreement. Microsoft has since filed an amended complaint, and Samsung has responded with a motion to compel arbitration. The case is Microsoft Corp. v. Samsung Electronics Co., 14-cv-06039, (D.N.Y. 2014).

Pink Panties v. Colonoscopy: Office Prank Gone Awry

According to a report from The Huffington Post, a Delaware man has filed suit after waking up from a medical procedure wearing women’s underwear.  The plaintiff, Andrew Walls, claims that surgeons from the Delaware Surgery Center dressed him in pink panties while he was under anesthesia to have a colonoscopy.  According to the complaint filed the the New Hanover (DE) Superior Court:

When the plaintiff recovered from the effects of the anesthesia administered by defendants, he awoke to realize that while he was unconscious pink women’s underwear had been placed on his body.  . . . When the plaintiff initially presented for his colonoscopy he had not been wearing pink women’s underwear and at no time did the plaintiff voluntarily, knowingly or intentionally place the pink women’s underwear upon himself.

Walls was apparently an employee of the medical facility and the underwear switch was a part of an office prank.  Nonetheless, Walls claims that he suffered from severe emotional distress as a result of the 2012 incident which ultimately cost him his job.

We here at Abnormal Use understand how Walls might be angry by the office prank gone wrong.  Even good natured fun can cross the line at times.  However, is waking up in pink panties really lawsuit worthy and, if so, what are his damages?  It would certainly be unnerving to undergo surgery and wake up wearing someone else’s underwear, men’s or women’s.  But, in the context of an office prank, it loses some of its bite. In this case, Wall already subjected himself to having his co-workers conduct the colonoscopy – probably the most humiliating procedure in the book.  How emotionally traumatized can one be over some lacy underwear after that?  We can appreciate the anger, but mental anguish to the point he can’t function on the job is going to be difficult to prove.

With that said, we appreciate the fact that no one wants to be on the wrong end of a prank – particularly during a medical procedure.  Walls has every right to be miffed.  Somewhere in the Hippocratic Oath it states that, co-workers or not, people should trust a medical staff not to dress them up in pink panties during a medical procedure.  However, the legal standard states that it is hard to recover with no damages.

Judgment for Litigation Funding Firm Defrauded by Texas Lawyer

A New Jersey litigation funding firm, American Asset Finance LLC, has reportedly been awarded a $960,000 judgment against a Texas lawyer who fraudulently borrowed $400,000 for fake law suits.  The owner of American Asset Finance, Tim Foley, is pleased that justice has been done, but is concerned that the defendant, Texas lawyer Gwendolyn Climmons-Johnson, who has been licensed to practice law in Texas for 25 years, is judgment proof.  This is because Climmons-Johnson was convicted in June of this year of using the EMS company that she owned to defraud Medicare in the amount of $2.4 million/

According to an FBI press release:

Gwendolyn Climmons-Johnson, 54, was convicted by a federal jury in Houston, Texas, on October 30, 2013, of one count of conspiracy to commit health care fraud and four counts of health care fraud. In addition to the prison sentence, Climmons-Johnson was also sentenced to serve three years of supervised release and ordered to pay $972,132 in restitution.

According to evidence presented at trial, Climmons-Johnson was the owner and operator of Urgent Response EMS, a Texas-based entity that purportedly provided non-emergency ambulance services to Medicare beneficiaries in the Houston area. The evidence showed that from January 2010 through December 2011, Climmons-Johnson and others conspired to enrich themselves by submitting false and fraudulent claims to Medicare for ambulance services that were medically unnecessary and/or not provided. Climmons-Johnson, who controlled the day-to-day operations of Urgent Response, submitted, and caused to be submitted, approximately $2.4 million in fraudulent ambulance service claims to Medicare.

At trial, the evidence showed that patient records had been falsified and the Medicare beneficiaries for whom Climmons-Johnson had billed ambulance services did not need ambulance services and were not in the condition stated in the records.

This is just another example of why crime never pays.  We are always amazed to see lawyers who think they can get away with fraud and other forms of financial dishonesty.  No matter how difficult it is to work hard for a living, the office is better than a federal prison cell any day of the week!

(Hat Tip: ABA Journal).

Friday Links

judgedreddclassics01cvrfcbd
 Above you’ll find an issue of Judge Dredd Classics which was released in conjunction with Free Comic Book Day in 2013. Note that the title character is reading a book called The Law, although the spine of the book in question suggests that it concerns copyright infringement. Light reading, eh, Judge Dredd? Are there other comic book covers that depict law books or legal treatises? Surely, there are not many. (By the way, we previously mentioned Judge Dredd here).

Did you know that this past week saw the twentieth anniversary of the release of Pulp Fiction? How can two decades have passed?

Over at The UT History Corner blog, you can learn about a 110 year old feud between engineering and law students. Let’s hope there’s a movie.

A helpful iPad tip from Jeff Richardson over at iPhone J.D.: “Don’t let your iPad ring in court!” Good advice, that.

Our favorite legal tweet of late is one from mid-September which we only discovered this past week. Here goes:

Abnormal Interviews: Daniel Hartis, Author of “Beer Lover’s The Carolinas”

BeerLovers_Carolinas_LO-Full

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners and makers of legal themed popular culture. For the latest installment, we turn to Daniel Hartis, author of the new book, Beer Lover’s The Carolinas, a handy and thorough guide to breweries, beer pubs, and other great beer joints in North and South Carolina. As we have previously noted, we here at Abnormal Use enjoy and remain proud of the beer scene in the Carolinas. Plus, we interviewed Daniel once before, shortly after the publication of his first book, Charlotte Beer: A History of Brewing In The Queen City. (You can revisit that interviewed – published not so long ago in July of 2013 – here.). When we learned that Daniel had written a new book, we knew, of course, that we’d request another interview. So, once again, he was kind enough to submit to an email interview, which appears below.

ABNORMAL USE: This is a book that likely could not have been written five or ten years ago. What do you feel has been the most exciting change in the Carolinas that has allowed the craft beer industry to flourish?

DANIEL HARTIS: There are many things that you could point to, but if I had to choose one, I’d credit North Carolina’s Pop the Cap movement. This bill passed in 2005 and allowed breweries to brew beers with an ABV as high as 15 percent, whereas before, they were limited to brewing beers at six-percent or under. Can you imagine how difficult it was to brew entire styles of beer, like high-gravity Belgian styles, imperial stouts or double IPAs? It wasn’t even possible in this state before Pop the Cap passed.

South Carolina passed similar legislation, as well, and two recent pieces of legislation – the Pint Bill and the Stone Law – have also been critical in allowing for continued growth in that state. Before the Pint Bill’s passage, you couldn’t go have a pint at a brewery – you had to go on a tour and have small samples. With its passage in 2013, SC breweries became destinations where you could visit to enjoy a maximum of four pints. In that same vein, the Stone Law – which passed earlier this year in an effort to lure Stone Brewing’s East Coast brewery to the state – allowed brewpubs to distribute their product and breweries to serve food. Like the Pint Bill, breweries have responded to these changes almost immediately, with several doing whatever they need to take advantage of the increased freedoms.

AU: What plans, if any, do you have to update the book as new breweries, bottle shops, and brewpubs continue to open throughout North and South Carolina?

DH: While I haven’t spoken to the publisher about it yet, I do know that they like to do new versions of books in the Beer Lover’s series every two to three years, depending on the market. The beer scene in the Carolinas is growing at such a tremendous rate that I’m sure they will want to update it in a year or two.

AU: How is it different for you when you visit a brewery or brewpub as a writer and reviewer than as a regular patron?

DH: As a writer, I make it a point to take note of a little more than I would as a regular patron, in which case I might be content to simply sit and enjoy a beer. Knowing that I’m writing for an audience who might not always share my taste in beer, I try as many of the brewery’s beers as possible (it’s a tough job, I know). Then instead of casting judgment on the beers by saying they are good or bad, I try to describe what I’m tasting and let the readers decide if the beer sounds good to them. Taste is subjective, after all. Fortunately the Carolinas are home to many great breweries producing a wide variety of styles, so there really is something for everyone. Aside from trying to be objective about beers, I try to take notes on the ambiance and environment of the places. Beer is the reason you go to these breweries, but at the same time, it’s only a part of the experience. I hope through my descriptions to help readers visualize these breweries and give them a taste of what they can expect. When I could, I would speak with the owners and brewers to get more information: what’s their philosophy on brewing, what’s their history, that sort of thing.

AU: There are many South Carolina beers currently unavailable for purchase in North Carolina, and vice versa. Why is that, and what is the biggest challenge faced by brewers who wish to distribute their beers in a neighbor state?

DH: I think it just comes down to the additional costs with having to distribute in another state – not to mention many of these breweries simply do not produce enough beer to get too far out of their own city, let alone state. That being said, I do think we’ll see breweries making the jump more frequently now, especially after building enough of a following in their respective areas. I heard recently that Lancaster’s Benford Brewing is looking to make the jump into North Carolina soon, and I think we’ll see other SC brewers following suit as well. Likewise, some North Carolina brewers are moving south as well (Green Man, The Olde Mecklenburg Brewery and NoDa Brewing are just a few that have recently started distributing in South Carolina).

AU: Besides your own website, Charlotte Beer, what sites should readers visit to keep current on issues affecting the craft beer industry in the Carolinas?

DH: With the growing interest in craft beer and breweries opening up seemingly every other week, many publications around the Carolinas are devoting more coverage to craft beer. Tony Kiss is reporting full-time on beer for the Asheville Citizen-Times and The Greenville News. You can also find Thom O’Hearn doing good work in Asheville at the Mountain Xpress. Here in Charlotte, Matt McKenzie does a good job covering the local beer scene with Charlotte Magazine’s On Tap blog, and Jonathan Wells has taken over as beer writer at Creative Loafing. Those are more of the traditional outlets, but there’s a lot of good beer coverage in blogs as well. The NC Beer Guys cover news, events and brewery happenings pretty exhaustively in North Carolina. In South Carolina, you have to follow Beer of SC and Drink. Blog. Repeat.

AU: What was the biggest challenge in attempting to visit and describe all of the breweries and brewpubs in North and South Carolina?

DH: I think it was just that: attempting to visit all of the breweries. I wanted the book to be as authentic as possible, meaning I wanted to visit as many places as humanly possible in a very short timespan. (I had just three months to write the book). I didn’t want to comb through things that had already been written; I wanted to visit these places firsthand to get my own impressions and observations, and I also wanted to make sure we got high-quality photos where possible (Eric Gaddy of Casting Shadows Photography did some excellent work in that regard). I’m so used to writing online and being able to update things on the fly, that it killed me to know that some breweries would open up after the book went to print. I knew that it would impossible to keep a printed product completely up-to-date, but I still agonized over it. I am proud to say that we visited several breweries in planning at the time that I knew would open up between the time I submitted the manuscript and the time the book was printed. Overall, I’m proud with how comprehensive the book is and look forward to adding even more breweries whenever the time comes to do a second edition.

BONUS QUESTIONS:

AU: What was your first craft beer, and what was it about that beer that made you starting thinking about beer differently?

DH: I guess it depends on your definition of craft beer. I really hated “big beer” and thought I didn’t like beer period until I started drinking Yuengling, which I enjoyed. When I moved to Asheville, NC to go to school, some friends and I stopped by Asheville Pizza. I told the waitress I’d try whatever their most popular beer is, and she brought back Shiva IPA. I’d like to tell you it opened up a whole new world for me, but I thought it was disgusting and abrasively bitter. My palate just wasn’t ready for it at the time, even though today I think it’s a great beer. Maybe a year or so later, UNC Asheville’s school paper asked me to write about the town’s microbreweries. This is where I got hooked. The one beer in particular that did it was Highland Brewing’s Oatmeal Porter, which I enjoy to this day. I’d never had a dark beer before then, and so it really opened up my eyes and sent me on my craft beer journey. (More on these earlier experiences,  as well as the article I wrote for UNC Asheville’s Blue Banner, can be found in “How I Came to Drink (and Write About) Craft Beer.”)

AU: If you could dispel any misconception about the craft beer industry, what would it be?

DH: There are lots of misconceptions about craft beer. Some that I encounter most often are that craft beer is too bitter or too heavy. That’s painting with a broad brush. The truth of the matter is that there is no more diverse a beverage than beer. From hoppy to malty to savory to sweet to sour to roasty to light – these are just a handful of the seemingly endless adjectives that we use to describe beer. I sincerely believe there is a beer out there for every palate.

AU: Cans or bottles?

DH: Cans have become trendy these days, but for good reason: they protect against light and oxygen better than bottles, and can be taken places where glass cannot. All things being equal I’ll say cans, though I’d never begrudge a good beer in a bottle.

BIOGRAPHY: Daniel Hartis is the founder of CharlotteBeer.com and the author of Charlotte Beer: A History of Brewing in the Queen City. His latest book, Beer Lover’s The Carolinas, was published by the Globe Pequot Press earlier this year. When he’s not writing about beer, he enjoys spending time with his wife and two children. You can follow him on Twitter at @CharlotteBeer.

No Wings for Red Bull? Company Settles False Advertising Suit In New York

According to a report from BevNet, energy drink manufacturer Red Bull has settled a proposed class action lawsuit filed against it for $13 million.  The suit, filed last year by Benjamin Careathers in the U.S. District Court for the Southern District of New York, alleged that Red Bull’s signature “It gives you wings” slogan is false and misleads customers about the drink’s superiority.  While the company’s advertisements may in fact show Red Bull drinkers growing wings, the plaintiff alleges that Red Bull offers no increased performance, concentration, or reaction speed.  As you might expect, Red Bull has denied any liability.

We assume – and hope – that the plaintiff didn’t actually believe Red Bull would give him actual wings.  (We doubt New York recognizes the “negligent failure to bestow wings” cause of action.). In fact, we seriously doubt that Red Bull would have paid out millions on such claims even if it was concerned about litigation costs. As such, we will refrain, mostly, from commenting on the absurdity of such a lawsuit and focus on the more plausible allegations.

This lawsuit was never about wings, but rather, it centered upon whether Red Bull actually delivers that energy fix we all crave.  After all, that energy boost is why people spend $3 on an 8-ounce drink in the first place, right?  Or, $2 for a cup of Starbucks coffee, for that matter.  The suit, however, alleges that Red Bull’s primary active ingredient (caffeine) is the same as that of coffee and, thus, it is not worthy of the premium price.  Maybe so, but the suit fails to take into account the cognitive effects that come along with drinking an “energy drink.”  Even if it offers a mere placebo effect, the energy drink didn’t become a multi-billion dollar industry without repeat customers.

The truth is that the energy drink is not some new phenomenon.  For centuries, people have been looking for ways to give themselves an extra burst of energy.  Coffee has been, and continues to be, the drink of choice for many across the globe.  However, in the 1960′s, Japanese manufacturer Taisho upped the ante when it released Lipovitan D – an energizing tonic sold in mini-bottles.  Thereafter, other beverage companies joined in the game.  Pop culture legend Jolt Cola was once marketed to the masses as having “all the sugar and twice the caffeine.”  Those were the days. Even the soft drink giants, Coca-Cola and Pepsi, have tried their hand at distributing coffee replacements over the years.  Today, the game has evolved into the billion dollar “energy drink” industry featuring companies like Red Bull and Monster.

Our guess is that this lawsuit will have little, if any, impact on the energy drink industry.  For those angry about Red Bull’s alleged false advertising, Red Bull has placed $6.5 million of the $13 million settlement into a fund for consumers.  If you have purchased a Red Bull in the last 10 years, you can go here for a $10 refund or two free Red Bull products.   No word on whether the free products give you wings.

Gross Negligence? BP Asks Louisiana Court To Reconsider Ruling

File this one under ho-hum appeals with multibillion dollar ramifications.. BP has asked the U.S. District Court for the Eastern District of Louisiana for reconsideration of the trial judge’s ruling that it was “grossly negligent” in its role in the the 2010 oil release in the Gulf of Mexico.  In September, the trial judge found that BP’s “profit driven decisions” prior to release amounted to gross negligence.  With that finding, BP’s potential liability has been estimated at about $18 billion.
In the ruling, Judge Carl Barbier found BP’s actions showed ”an extreme deviation from the standard of care and a conscious disregard of known risks.”  The main reason behind this finding was that several “profit driven” decisions by BP purportedly prompted the release of oil.  The decisions at issue included drilling in dangerous conditions for the final 100 feet of depth and not running an additional test of the cement used to seal the well. In its reconsideration motion, BP argued that some of the so-called profit driven decisions that formed the basis for the gross negligence finding were based on theories given by an expert whose testimony had been excluded by the court.  During the trial, the judge excluded one expert’s theory as to the cause because BP had no prior opportunity to counter that evidence. Nevertheless,  when the judge outlined the basis for his gross negligence ruling, he included factors that would have been relevant only if excluded theory had been admitted into evidence.

It’s difficult to say, at this point, whether this is a legitimate gripe or a potential $18 billion technicality.  Either way, it’s got big money ramifications.

When It Comes To Adverb Use In Legal Documents, Know Your Audience

adverbs

We here at Abnormal Use took notice of a recent Wall Street Journal article which examined the use of adverbs in legal documents in the United States.  The article highlights the impact that the usage of adverbs have had in SCOTUS jurisprudence.  For example, in the recent Burwell v. Hobby Lobby case, the Court was faced with the determination of whether certain regulations “substantially burden the exercise of religion” as defined by the Religious Freedom Restoration Act (RFRA).  See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2759, 189 L. Ed. 2d 675 (2014).  In a recent “net neutrality” case, the United States Court of Appeals for the District of Columbia was forced to determine the impact of a rule requiring service providers to “serve the public indiscriminately.” Verizon v. F.C.C., 740 F.3d 623, 655-56 (D.C. Cir. 2014).

In the piece, the WSJ examines the glut of adverbs in the legal system against the backdrop of numerous opinions of successful writers, including Stephen King, who warns against the use of adverbs:

No part of speech has had to put up with so much adversity as the adverb. The grammatical equivalent of cheap cologne or trans fat, the adverb is supposed to be used sparingly, if at all, to modify verbs, adjectives or other adverbs. As Stephen King succinctly put it: “The adverb is not your friend.”

However, the article acknowledges that research on the subject has yielded mixed results:

According to a 2008 study by two scholars at the University of Oregon School of Law and Brigham Young University, lawyers who stuff so-call intensifier adverbs in their legal briefs—words such as “very,” “obviously,” “clearly,” “absolutely” and “really”—are more likely to lose an appeal in court than attorneys who avoid those “weasel words,” as Mr. Garner described them. But notably, the study found that the habit can actually work in a lawyer’s favor if the presiding judge really likes to use those adverbs, too.

Our take is that lawyers should be aware of their audience.  If the audience likes adverbs, use adverbs.  If the audience hates adverbs, don’t use adverbs.  If you are unsure whether your audience likes adverbs, or if you are writing a mystery novel in your free time, err on the side of avoiding adverbs. But do so carefully.

(Hat Tip: ABA Journal).

Friday Links

mtio37
 You know, we’re a little surprised that we’ve never before seen the cover of Marvel Two-In-One #37, published back in 1978. How could we have missed this? On the cover, Daredevil’s alter-ego, Matt Murdock, is apparently defending Ben Grimm, The Thing, in court. Matt’s not doing too well, quite frankly. In fact, the judge exclaims, “You’re Guilty,  Benjamin Grimm! I sentence you to 20 years!” Sensing the potential malpractice claim, Murdock thinks to himself, “I defended The Thing . . . and . . . lost!” Call the carrier, Mr. Murdock!

Good news: Fleetwood Mac is coming to the Carolinas.

Rest in peace, Jan Hooks.

Our Stuart Mauney has spent a good bit of this week at the ABA 2014 National Conference for Lawyer Assistance Programs. Of course, he’s been live tweeting the event. You can follow Stuart on Twitter and see his conference related tweets here.

Speaking of Twitter, our favorite legal tweet of late comes from Popehat: