In Rememberance Of Valentin Ribet, Lawyer Struck Down By Terrorists in Paris

PEace

We can envision few acts more cowardly than ambushing and murdering unarmed civilians engaged in leisure. That is precisely what occurred on Friday, November 13, 2015.

By now, we all know that several groups of terrorists affiliated with ISIS launched a coordinated attack against unarmed Parisians with explosives and assault rifles. One minute, the victims were enjoying a care-free Friday night, the next minute, they were under attack with no chance of defending themselves.

We here at Abnormal Use cannot even pretend to understand what the families of those slain now endure, nor can we comprehend the pain experienced by the wounded who are still struggling to survive. We do want those who were directly affected by these senseless attacks to know that they are in our thoughts and prayers.

Additionally, because we are a legal blog, we would like to take this time to honor a member of the legal community whose life was taken too early. The “first confirmed fatality” in the Parisian attack was an associate attorney at Hogan Lovells named Valentin Ribet.

Ribet

Ribet was a graduate of the London School of Economics where he earned a degree in political science. Prior to Hogan Lovells, Ribet worked for the law firm of what is now called Freshfield Bruckhaus Deringer. Ribet was 26 years years old at the time of his passing, and according to a statement by Hogan Lovells, Ribet “worked in the litigation team, specializing in white-collar crime.” Ribet was also reportedly a “a talented lawyer” who was “extremely well liked, and a wonderful personality in the office.” According to comments by friends of Ribet on Twitter, in addition to being a talented lawyer with a promising future, he was a good person.

Our thoughts and prayers are also with the hundreds of others killed, wounded, and otherwise affected by the violence last week. Our hope is that the victims can find peace, and that the impuissant invertebrates who inflicted this harm will find themselves on the receiving end of swift and proportionate justice.

Friday Links

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Whoa. It’s Friday the 13th. Above, you’ll find the cover of Friday The 13th Fearbook #1, published not so long ago in 2006 (and well after the heyday of 1980’s slasher movies). We’ve not read that issue, and to be honest, we don’t plan to. But as you might imagine, there are only so many Friday The 13th pop culture references.

This is your reminder that revisions to the Federal Rules of Civil Procedure go into effect on December 1, 2015. You might want to look into that.

In case you had not heard, our own  John E. Cuttino has been named President-Elect of DRI–The Voice of the Defense Bar (DRI) and will serve as President of DRI beginning October 2016. We congratulate John, and we encourage you to follow him on Twitter at @SCLitigator.

Our favorite legal tweet of the week concerns the perils of law libraries and the like:

Star Wars and the Abnormal Use Law Blog: A History

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We must admit that we are growing more and more excited about the release of the new Star Wars movie. Perhaps we’ll be disappointed, just as we were in 1999 when we first caught a glimpse of the wretchedness that was The Phantom Menace. We’ll see. Get this: If you search the Abnormal Use archives for the search term “Star Wars,” you’ll receive 28 results (many of which arise from references we’ve made on our weekly Friday Links post).

Apparently, though, we were once more skeptical of the new film. Back in 2013, we wrote:

Mark our words: The casting of Harrison Ford, Mark Hamill, and Carrie Fisher in the new Star Wars sequels is bad, bad news. Trust us on this one. We’re nostalgic, too, perhaps overly so. But we sense doom on this one. Check back with us in 2015, and we’ll collect our accolades and vindication.

What do you expect from us? We are inconsistent on this issue. Back in 2012, we remarked that it was “a bittersweet topic for us, to be certain.” We’ve even given George Lucas some grief over the years for trying to tie the Star Wars narrative – which takes place a long time ago, in a galaxy far, far away – to Valentine’s Day. But back in 2010, we noted that “any court in the land would find that 1980’s The Empire Strikes Back is the best film of the Star Wars series as a matter of law.”

In one or our earliest Friday Links posts, we cited several courts that have attempted to describe the Star Wars universe in their opinions. Our favorite:

Darth Vader is a huge, malevolent figure dressed entirely in flowing black robes, including a black cape which reaches to the floor. His face is masked by a grotesque breath screen with sharp angles and menacing protrusions. He wears a black helmet of flared design and is armed both with a light saber and his command of The Force, a cosmic power tapped by the Jedi Knights, a vanishing breed of crusaders for good from whose ranks Darth Vader has defected. Darth Vader has significant confrontations in the movie with his former teacher, Ben (Obi-Wan) Kenobi, who is now the Jedi Knight mentor of the young and heroic Luke Skywalker, and with Luke himself; the first battle is fought with light sabers and the second with spaceships.

See Ideal Toy Corp. v. Kenner Prods. Div. of General Mills Fun Group, Inc., 443 F.Supp. 291, 297-98 (D.C.N.Y. 1977).

We like that there is federal judicial authority for the proposition that Darth Vader is malevolent.

Our favorite, as you might suspect, is our 2011 April Fool’s Day post, entitled “Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds” (something which we previewed in an early post here). In fact, we cited that fake case in this year’s April Fool’s Day post, “Federal Court Enjoins Reboots of ‘Twin Peaks’ and ‘The X-Files’ On “1990’s Estoppel” Grounds.” Those were absolute joys to write, we must say. Cathartic, in fact.

By the way, now is a good time to revisit the Drug and Device Law blog’s magnus opus on Star Wars, as well. Click here to revisit that piece.

Veterans Day

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We here at Abnormal Use and Gallivan, White, & Boyd, P.A. celebrate the heroism of our nation’s military personnel today, Veterans Day. As we do each year, today, we pause to reflect upon all of the sacrifices made by American servicemen and women and all they have done for the country, both in present times and years past.

To commemorate the occasion, we direct your attention to the cover of The ‘Nam Magazine #7, published way, way back in 1989.

Thank you again to our veterans for their service.

Social Media Discovery of Products Liability Issues

As you know, we here at Abnormal Use sometimes contribute content to other publications, and this week is no exception. Our own Jim Dedman saw the publication of his “Social Media Discovery of Products Liability Issues” piece in the most recent issue of DRI’s Strictly Speaking (for which Jim happens to serve as editor). Here’s the first two paragraphs:

Much has been written about the value of investigations into the social media presence of Plaintiffs in litigation. However, such advice typically centers upon the potential discovery of statements or photographs which contradict a Plaintiff’s testimony about his or her damages. Many a diligent practitioner has located compromising evidence which impeaches a Plaintiff’s testimony as to his or her purported injuries or limitations. Practitioners should also consider expanding the scope of their social media discovery efforts to include a Plaintiff’s online commentary regarding the use of the underlying product in products liability cases. These days, in an era when individuals offer online commentary about the most minute details of their lives, take photographs of their meals in order to post such images on Instagram, or share with their online communities their latest purchases or experiences, there is an increasing likelihood that such individuals may have commented about the purchase or use of the products being litigated.

In a recent case, a Plaintiff spent considerable time and energy excoriating a product which she felt caused her damages. Specifically, in this products liability case which resulted in flooding and damages to the home, the Plaintiff utilized Twitter, Facebook, and a personal blog created solely for the purpose of exploring her damages related to the product and her home. Over the course of multiple blog posts, the Plaintiff attempted to portray herself as a burgeoning expert the types of injuries she claimed to have suffered. These posts were at least initially difficult to locate due to the fact that the writer had adopted a pseudonym of sorts, and thus, they would not have been located but for diligent efforts. Certainly, although this particular Plaintiff created far more online evidence than a typical litigant, claimants still seem to forget the potential effect of their online remarks on their pending or subsequent litigation. In light of these issues, wise practitioners should search not just for social media profiles but also more specific commentary by a Plaintiff relating to the product. This can be done in several ways.

You can read the full article here.

U.S. Soccer Announces New Safety Initiatives: Just How Effective Are They?

In response to a class-action lawsuit filed last year against FIFA, U.S. Soccer, and the American Youth Soccer Organization, the United States Soccer Federation has announced a number of new safety policies to address head injuries in the game of soccer. As reported by The New York Times, the new regulations, which will be mandatory for U.S. youth national teams and recommended for other soccer associations beyond U.S. Soccer’s control, include the prohibition of players age 10 and younger from heading the ball. In addition, substitution rules will be modified (the specifics have not yet been announced) to help monitor players suspected of sustaining a head injury in the field of play. The announcement ends the suit filed last year in federal court in California by a group of players and parents concerned with the way soccer leagues monitor head injuries. The plaintiffs sought rule changes and not financial damages.

In this regard, we suppose the plaintiffs should proclaim, “Mission accomplished.”

We here at Abnormal Use fully support safety initiatives in sports. While we understand and support the intent of these new initiatives, we wonder how effective they will be. In regard to the unspecified new substitution rules, we again appreciate the intent. Assuming the new rule allows a temporary substitution while a team monitors a suspected head injury, the rule would theoretically encourage teams to pull the injured player off the field without playing a man down. Makes sense. But why should a head injury be treated differently than any other injury in this regard? Who monitors whether a player has a suspected head injury? What is to keep a player who injured a knee, but can’t leave the field without using one of the team’s three substitutions or forcing the team to play a man down, from saying he also hit his head and, thus, alleviating his team from the predicament? Maybe we are over-thinking this (as usual), but it seems a rule like this could cause more difficulty than good.

The bigger hole with substitution rule (again, assuming it is for a temporary substitution), though, is that it doesn’t address a fundamental principle in all sports – players want to be on the field. Players at all levels, in all sports, often hide or minimize their injuries so they can continue playing. Sure, soccer players are aware of the current substitution rules and don’t want to put their teams at a disadvantage, but what they really want is to stay on the field regardless of whether there is or is not a sub. For this reason, we hope that the new rules have some measure of monitoring for suspected injuries or else they might not have much of an effect.

Prohibiting headers by young players is a noble idea. On the surface, what better way to limit head injuries than keeping kids from purposely striking balls with their heads? The prohibition, of course, would also seem to limit the number of mid-air collisions occurring between players leaping to head balls. This much is good. It ignores the fact, however, that soccer remains a contact sport. A contact sport where players do not wear protective head gear. According to the complaint in this matter, nearly 50,000 high school soccer players sustained concussions in 2010. That number is greater than the combined total of players in baseball, basketball, softball, and wrestling. We assume that only a percentage of those numbers were injuries sustained in the course of a header. Rather than simply forbidding the practice for youth (which will become an important part of the game as they progress through the ranks), why not consider head gear which will aid in all aspects of the game?

Ask the NFL how that has worked out.

Friday Links

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“No matter what the jury decides, the secret empire demands death,” proclaims the cover of Marc Spector: Moon Knight # 17, published way, way back in 1990. That doesn’t sound like something you would find in the pattern jury instructions, does it? We do suppose, though, that if your name is Marc Spector then you are somehow destined to become a cryptic superhero.

Congratulations to our own Ron Tate, who was recently chosen to receive the Home Builders Association of South Carolina (HBASC) Thomas N. Bagnal Associate of the Year award. If you’re not already following Ron on Twitter, here’s your chance.

Speaking of social media, don’t forget that you can follow Abnormal Use on Facebook! Click here to do so.

Our favorite legal tweet of late concerns the famous monkey copyright case. Enough said:

Social Media Discovery – Timing is Key

Timing is everything in litigation. That’s certainly true in the discovery arena, even when dealing with the (still) relatively new field of social media.  Recently, Ernie Svenson a/k/a Ernie the Attorney wrote a fascinating post about the perils and pitfalls of subpoenaing Facebook for an individual’s social media profile and underlying private data.  According to Ernie, Facebook usually refuses to produce a meaningful subpoena response – the good stuff you’re hoping to get will likely not be in the company’s formal response. Accordingly, he offers some alternative approaches to obtaining that data through the formal discovery process. There’s not much to add to his very thorough post; but I would offer the following tips on timing such requests.

First and foremost, the investigating party should use informal means to capture or preserve any social media profiles on the litigant at issue.  There’s all sorts of articles out there on how to do just that. To this day, some users still maintain fully or partially public social media profiles (even after so many years of articles like these promoting social media discovery).  One can capture that data in a variety of ways, either by printing a PDF, utilizing a screen capture, video capture (if the case merits it), and/or saving the image files to one’s desktop in their original JPEG format for later usage.  Remember, too, to note the date, time, and manner in which the data was captured in case that information is needed later for authentication purposes.

It may be that your own informal searches and preservation will obviate the need for a subpoena to Facebook (which, as Ernie notes, will retain its own law firm to handle subpoena responses and ensure, as already noted, that your battle is costly and ultimately unsatisfying).  However, if you feel that formal discovery tools are still necessary, remember that when lawyers issue subpoenas, they necessarily alert their opponents to sources of relevant information. So, if you are going to tip your hand, and the case justifies it, the following is one potential approach.

To address all potential needs in one volley, you can simultaneously serve the following:

1) The subpoena to Facebook, using some of the helpful tips identified by Ernie in his post.

2)  Subpoenas to any other social media entities you have identified.  Once your opponent knows you are after social media data, it’s best to obtain all that you can in one fell swoop.

3)  Requests to admit seeking to authenticate the profiles you informally located.  In addition to the genuineness the profiles, you may also want to request that the litigant admit that he or she uses certain handles, user names, user numbers, or email addresses associated with the account.

4)  Interrogatories and requests for production seeking copies of the private areas of the social media profile.  As Ernie notes, you may wish to encourage your opponent to use the “Download Your Information” feature to capture all relevant data (although you should probably expect an objection that the information sought is irrelevant, overly broad, and unlimited in time).

5)  Supplemental responses to your opponent’s discovery to you.  It is likely that your opponent has served discovery requests that call for the information you have located.  Rather than resist that discovery, you may wish to supplement your responses to identify the data you have located (which you may already be producing in conjunction with your requests to admit).  This may assist you later if the court has any concerns about the profile data constituting an unfair surprise.

6)  Preservation letter.  In addition to the foregoing, you may wish to send your opponent a letter noting that you have identified this social media information and that you are aware of the likelihood of responsive imagery or text that is private which must not be spoliated.  You should go so far as to note that there can be consequences for spoliating social media data, just as there are for the purpose for inadvertent destruction of any evidence.

When one’s opponent receives the above volley of paperwork, he or she will most certainly be alerted to the fact that you believe that there is relevant social media data in the case.  But by serving all at once, you may protect yourself against potential spoliation of evidence (or at least preserve your ability to argue later that you advised your opponent to safeguard the data).

(This post was originally posted on the now defunct North Carolina Law Blog on November 16, 2011).

How To Blog: A Primer (And Not A Boring Primer, Either)

We  are often asked – sometimes even by interested coworkers – how to blog.  Good question. Sometimes they are legitimately curious, other times they just wonder how and why we do the nerdy things we do.  We’ve seen this question addressed on many a blog, but a good many of them miss the point.  The curious readers are not really asking how to create a blog, design a blog, or promote a blog, but rather, how to sit down and engage in the process of writing and editing a blog entry itself.  That’s the real trick, isn’t it?  How do you determine what to discuss on your blog?  Once you figure that out, the rest is easy.

When you think about it in detail, the quest for subject matter – blog fodder – is the easiest part of blogging. We’ve all got legal anecdotes, war stories, and opinions on issues large and small.  You can write not just about the latest cases, but about your legal pet peeves, awkward moments at depositions, and even our thoughts on the blog entries of other writers.  Really, any story you tell another lawyer at lunch or any minor tirade you embark upon as the result of an irksome legal annoyance is appropriate and good subject matter.  Anything you read in the news, anything you see in pop culture, or anything you encounter on the vast expanse of the Internet can prompt a post large or small, even if it only offers the tiniest connection to the world of law.

But even armed with an idea for a post, some would-be bloggers face a challenge in converting it into a proper blog post.  This, too, can be easy, if you approach the task in the proper way.  Lots of writers become discouraged with the idea of drafting a post. To them, blogging is the difficult task sitting down in front of a blank computer screen on a single occasion and then formulating an idea for a post, writing it, and editing it, all in one sitting.  Just as with a motion or brief, it’s stressful when you sit in front of a blank screen on the computer and know that you cannot get up again until you have finished a draft. There is a better way.  Bloggers should carry blog ideas with them and allow them germinate and develop in their minds before sitting down to write the post.  They can scribble notes on a legal pad, or if they have the ability and desire, dictate a rough draft of a post.  That way, when they sit down in front of their computer, they’re not facing blank screen but starting with a series of their own notes or even a dictated rough draft of the post.  This makes it much easier to complete the task – they’re not producing a post out of thin air but massaging earlier work product into a final post.

So there you go, would-be bloggers. Have at it.

(This post was originally posted on the now defunct North Carolina Law Blog on March 14, 2012).

NFL Player Has Had Enough of Daily Fantasy Sports Site Commercials (At Least One of Them)

If you are like us, you are a part of the growing number of people who are getting sick of the incessant commercials for those daily fantasy sports sites, FanDuel and DraftKings. Count Washington Redskins wider receiver Pierre Garcon as one of them. According to a report from ESPN, Garcon has filed a class-action lawsuit against FanDuel (but not DraftKings – more on that below).  The suit, filed in federal court in Maryland, accuses FanDuel of misusing players’ names and likenesses without proper licenses or permission.

To be fair, Garcon is not necessarily upset about the sheer volume of the commercials, but rather the frequency with which his name occurs in them. For example, in one 28-minute infomercial, Garcon’s name is seen 53 times. We assume the 53 times is more than overkill as Garcon would have taken issue with the use of his name even once.

This case is interesting on several fronts. First, this isn’t necessarily a case of a company fraudulently acting as if a famous person is endorsing its product.  While we admittedly have not seen every commercial or the 28-minute infomercial (thankfully), we have not seen an instance where Garcon’s name is being used in a manner that would even imply that he is a FanDuel supporter. Rather, Garcon’s name is used in examples of how the fantasy sports site operates. Users draft players like Garcon based on daily “salaries” contingent on the player’s statistics and value. As a decent player with decent fantasy value, Garcon’s name and statistics are bound to come up in the examples.

FanDuel apparently takes the position that it has every right to use Garcon’s name in this context. As FanDuel spokeswoman Justine Sacco said in a statement, “We believe this suit is without merit.  There is established law that fantasy operators may use player names and statistics for fantasy contests.”  The law she is referring to is the case of National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841 (2nd 1997), in which the Second Court of Appeals held that federal copyright statutes do not allow for the ownership of data. If this case really is about data, then maybe FanDuel has an ally.

Apart from the merits, the more intriguing thing about this lawsuit is the fact that DraftKings, who advertises in a similar manner to FanDuel, is not a party. The simple answer to its omission is that DraftKings has a marketing relationship with the NFL Players Association and such it is permitted to use the players in its advertising. The more interesting question though is whether DraftKings played any role in urging Garcon and the NFLPA to bring the suit in the first place. What better way to take down a competitor than to sit back and watch a class action lawsuit unfold against it?