Above, you’ll find the cover of Manhunter #21, published not so long ago in the halcyon days of 2006.  We see Kate Spencer, Manhunter’s alter ego, with her costume falling from her briefcase.  Get this! She’s an Assistant United States Attorney by day.  Here’s an excerpt from her character biography on Wikipedia:

Kate Spencer is a federal prosecutor who grows increasingly tired of seeing guilty criminals evade punishment. Copperhead, a supervillain on trial for multiple murders and cannibalism, avoids a death sentence and escapes from custody after killing two guards. An angry Kate takes matters into her own hands, stealing equipment from an evidence room and killing Copperhead. Calling herself Manhunter, Kate blackmails a former weapons manufacturer for numerous villains named Dylan Battles — who is in the Witness Protection Program — into building, maintaining, and upgrading her armor, weapons, and gadgets.

How about that?

Via his Twitter account, our own Stuart Mauney directs us to this article, entitled “Epidemic of Depressed Lawyers!“, by trucking lawyer Mark Perkins. As you may recall, Stuart has written on similar topics right here at Abnormal Use. In fact, not too long ago, Stuart served as the Chair of the SC Bar HELP Task Force, educating lawyers and judges about substance abuse and mental health issues in the legal profession. If you’d like to follow him on Twitter to learn more about these or other legal issues, you can do so here.

More evidence that Susan Saladoff’s “Hot Coffee” documentary is having an effect on the population. Sigh.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

From a very recent court opinion: “Postings on Facebook and other social media present a unique challenge for courts, due to their relative novelty and their ability to be shared by or with someone besides the original poster. Nonetheless, a court may compel production of a party’s Facebook information if the party seeking disclosure makes a threshold relevance showing.”

You think? Well, sometimes, but not always. Traditional discovery rules and jurisprudence remains helpful in such inquiries.

The quote above is from Higgins v. Koch Development Corp.,  No. 3:11–CV–81–RLY–WGH (S.D. Ind. July 5, 2013).

Note: That opinion was released on July 5, which was a Friday, if you recall.  Someone didn’t take a three day weekend, apparently.

The fact of the case were these: In 2009, the Plaintiff’s visited a water amusement park.  One of the attractions at the park, the “Bahari River,” had  “muratic acid and liquid bleach filtered into the water by a filter pump that was connected to a breaker.”  The Plaintiffs alleged that they suffered toxic chemical injuries and pulmonary problems as a result of improper maintenance of the filters and pumps.

At their depositions, the Plaintiffs confirmed the existence of their Facebook pages (of which defense counsel was no doubt previously aware).  Interestingly, the Plaintiffs agreed to capture and preserve their complete profile history using the “Download Your Information” function (although they apparently did not produce this information to the defense, which prompted a motion to compel).  The opinion does not reveal when they actually preserved the information – whether it be in the deposition room itself or sometime later. In refusing to produce the Facebook data, the Plaintiffs invoked the traditional arguments (overbreadth, irrelevance) but also argued that the production of the data would violate the privacy rights of non-parties whose images became part of the Plaintiffs’ profiles via tagging.

The court quickly disposed of the relevance objection, noting that the specific claims made by the Plaintiffs in the lawsuit made the information contained on their social media profiles relevant indeed.  As the court observed, “Koch claims that [Plaintiffs’] Facebook content may reveal relevant information as to the extent their injuries have impacted their enjoyment of life, ability to engage in outdoor activities, and employment, along with their claims regarding permanent injuries, lack of pre-existing symptoms, and impairment of future earnings capacity. Since the extent of [Plaintiffs’] losses in these areas directly impacts the appropriate damages award, the court finds this information relevant.” No surprise there, especially if the Plaintiffs used Facebook as much as the opinion suggested they do.

Sophisticated as to Facebook’s privacy settings, the Plaintiffs also claimed the request violated their privacy rights (as they had made their profiles as private as Facebook allows them to be).  This is argument, of course, is particularly weak, as Plaintiffs clearly put their lifestyles at issue in bringing the suit and alleging those damages, and thus, the mere fact that they have shielded relevant data using Facebook’s privacy settings does not relieve them of an obligation to produce relevant information.  In rejecting Plaintiffs’ argument on these grounds, the court noted that Plaintiffs “cite[d] no cases supporting the proposition that setting a Facebook profile to ‘private’ entitles a person to a greater expectation of privacy or can act as a shield to discovery.”

This, of course, leaves us with the most interesting argument Plaintiffs made: that the request violated the privacy of non-parties. You’ve got to give the Plaintiffs’ lawyers points for creativity on that one. Essentially, Plaintiffs argued that their friends – other Facebook users – posted comments on Plaintiffs’ Facebook walls or appeared on Plaintiffs’ Facebook timeline by being tagged in photographs or posts in which Plaintiffs were also tagged.  Unpersuaded, the court characterized this argument as “unfounded,” citing another court which had already reached the conclusion that tagged photographs are discoverable if relevant because “once the plaintiff was tagged in the photos, they became in the plaintiff’s “possession, custody, or control.”

Clearly, this is the right result.  In light of the resistance the Plaintiffs exhibited in producing these profiles, we suspect there is some good impeachment available for the defense to find.

We learned recently that a South Carolina lawyer friend is contemplating starting a blog.  Well, the first and most difficult question is always: What clever name should I bestow upon my site?  We can’t help you there.  But in honor of our friend, who shall remain nameless until the site debuts, we thought we would offer a bit of advice on source material for the blog. Blogging can be college side hustles for students interested in writing.

Here’s the best part!  We went back to our original late 2009 memorandum advocating the creation of Abnormal Use to address this issue.  It’s our origin story!

In that memorandum, here is what we advised our future selves about source material for a South Carolina blogging operation:

All sources of potential posts are free.  There are a number of email lists and web sites which can serve as a potential source of material, including the following:

• Findlaw.com Newsletters (This website sends a whole host of newsletters, including those dedicated to all of the Federal Circuits, the U.S. Supreme Court, various state Supreme Courts, as well as newsletters organized by legal subject matter and practice areas).

• S.C. Courts – The S.C. Courts issue email alerts each time the S.C. Court of Appeals or the S.C. Supreme Court issues orders or opinions.

• Other Law Blogs – Typically, in order for a law blog to be successful, it must occasionally comment upon the posts of other law blogs, if only to engender good will among competing blogs and institute commentary between them.

• Federal Courts – Most federal courts now have e-mail lists and/or RSS feeds which alert practitioners to “news and/or new case filings.”

• Newspapers – Often, legal news comes not just from official sources such as courts but also newspapers.  Information from the New York Times or The State is potentially good blog fodder, especially since it would be relatively easy to fashion a post out of a news story by adding brief commentary.

• Bar Associations and Trade Organizations – Always a good source of information, bar associations send out e-mails lists and news of interest to their members, which can easily be turned into blog posts.

Sure, it’s pretty straightforward, but as nostalgic as we are, we couldn’t resist sharing it with you and our future blogging friend.

The Third Circuit, in January of 2013, said something that most folks were saying many years before:

More recently, membership in the Fourth Estate has been democratized. Access to blogs, smartphones, and an extensive network of social media sites (not the least of which are Twitter and Facebook) have transformed all of us into potential members of the media.

PG Pub. Co. v. Aichele, 705 F.3d 91 (3d Cir. 2013).

We’re late to this case, which was published in January, more than six months ago. But what’s interesting about this remark, which appears in footnote 24 of the opinion, is that the court immediately backs away from the principle due to the specific facts of the case.

You see, in this case, the court was called upon “to decide whether a state statute restricting access to a polling place infringes on the media’s First Amendment right to gather news.” Obviously, part of that inquiry hinged upon who was the media. As the court itself asked: “Who is a member of the press? Even if we were inclined to find a special First Amendment right for the press in this case (which we explicitly refuse to do), the class of persons to whom such a right is applicable is almost boundless.”

So, the remainder of footnote 24:  “While in almost any other situation this would be a boon to a free and democratic society, in the context of the voting process, the confusion and chaos that would result from a potentially limitless number of reporters in a polling place would work the opposite effect, potentially creating confusion, frustration, and delay. This is to say nothing of our earlier holding that the rights of access for the press and public are co-extensive. In this situation, anyone could record in the polling place if the First Amendment protected the right of access thereto.” (Emphasis in original).

How about that?

Behold! The cover of Criminals on the Run #4, published way, way back in 1948! This cover is only tangentially related to the law, but it does depict felons in flight. However, since last night saw the television premiere of Sharknado, we had to find a comic book cover with a shark on the cover.  We just had to.

Whoa, yesterday’s post was our 950th in our blog’s history. That’s a lot of posts. Just saying.

We have news from friend of the blog Alberto Bernabe. Here is the relevant excerpt from a missive we received on his behalf:

For those of you who follow Alberto Bernabe’s Professional Responsibility blog, Alberto asked us to let you know that if you want to continue to get the updates by e-mail you will need to subscribe again.  Last night the “feed” that automatically generates the e-mail updates stopped sending e-mails to registered users.  Please take a moment to visit his blog and sign up again for the e-mail update.   If you have any questions or concerns please feel free to e-mail Alberto directly at abernabe@jmls.edu.

And you know what? If you’re not familiar with Professor Bernabe or his blog, check them out!

With respect to this news, all we can say is ouch.

The ABA Journal is once again preparing its annual list of the 100 best legal blogs.  At present, the publication is soliciting nominations from its readers for blawgs to add to this year’s list.  Accordingly, we humbly request that you nominate us for the honor.

Note: The deadline to do so is August 9, 2013.

The ABA Journal is not just looking for the name of your favorite blog. They’d like you to offer a few lines about why that particular blog is your favorite.  What has the blog done in the past calendar year to earn your favor?  Why is it that you enjoy reading that blog?  Is it, say, a regular feature, its editorial tone of voice, a particularly impressive series of posts, or just the subject matter itself which intrigues you?

Allow us to do a bit of electioneering.  Throughout the year, we have continued to bring you news on the latest product liability litigation and jurisprudence, each business day, as we have since January 2010.

So, if you like us, please feel free to nominate us for the ABA Journal’s list.

There are many great legal blogs out there, and we hope that even if we are not your favorite that you will still participate in this process and nominate your favorite blog.  We here at Abnormal Use – who are prohibited by the rules from nominating ourselves – would probably be too bashful to vote for our own site, anyway. Whatever the case, some of us here have already nominated a few of our favorite blogs for inclusion onto the list (including some blogs which we read and enjoy but with which we disagree regularly).

You can complete the very brief nomination form here.  It will only take you a few moments.

Above, you’ll find the cover of Police Comics #7, published way, way back in the 1940’s. You may recognize Plastic Man prominently depicted on its cover. However, we bring this issue to your attention due to the presence of one of the heroes showcased on the comics left sidebar: #711. Get this: By day, #711 was a lawyer, and a district attorney to boot! Here’s what Wikipedia has to say about him:

Daniel Dyce was a District Attorney who was almost an exact twin of his friend, Jacob Horn. Jacob was in prison, but wanted to see his wife give birth, so Daniel agreed to become a prisoner while Jacob was with his wife. However, Jacob is killed in a car crash on the way to the hospital, so Daniel was stuck in jail. Daniel was able to tunnel himself free, but instead of escaping, he decided to return to his cell. Each night he uses his tunnel to go outside and fight crime, then returns before the morning. Dyce adopts the name #711, a reference to his prisoner number. After two years of adventures Daniel Dyce was killed by the mobster Oscar Jones. The hero Destiny sees this take place, and starts his crime fighting career when #711 died, replacing his feature in Police Comics.

How about that?

Oh, my goodness! There’s a Third Amendment claim being made in litigation!

The folks at Reddit are now discussing the infamous Stella Liebeck McDonald’s hot coffee case. We’ve talked about that case a time or two, we think. Haven’t we?

FYI: The new clerk of court for the U.S. District Court for the District of South Carolina is Robin L. Blume.

And the award for worst copyright lawsuit of the years is already decided, apparently.

The founder of the rock band Boston must pay his opponent’s costs in his unsuccessful defamation lawsuit. “More Than A Feeling,” indeed.

Above, you’ll find the cover of the trade paperback of the comic book adaptation of the 1996 film, Independence Day, which many of us will watch over this extended holiday weekend.  Even after all of these years, we’re still suckers for that movie, and we’re pleased to know a sequel is in the works. In the meantime, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you and yours a safe and eventful Fourth of July. Let’s celebrate our nation’s birthday today (and, if time permits, have a beer or two, as well). If you’d like to see our past Fourth of July posts, please see here, here, and here.

Another week, another new case on Facebook friendships.  This time, it’s Clore v. Clore, No. 2110967 (Ala. Civ. App June 28, 2013), a divorce case in which the wife appealed certain rulings relating to alimony and property-division and challenged the trial court’s denial of a request for a new trial and recusal based on the trial judge’s apparent Facebook friendship with the parties’ adult daughter.

Needless to say, we’re interested in the latter component of this decision by the Alabama Court of Civil Appeals.

Apparently, at a hearing on the wife’ motion for new trial, her lawyer introduced some exhibits printed from Facebook establishing that the trial court judge maintained a Facebook friendship with the adult daughter of the parties. (We wonder how it occurred to them to investigate social media connections in this matter.).  According to the opinion, the issue had never previously been raised by either of the parties, and the court does not offer many details about the nature of the Facebook friendship (i.e. how long the two had been Facebook friends, how many friends the judge and the daughter had on Facebook, et cetera).

In its opinion, the appellate court quote the trial court’s justification for denying the motion for new trial:

“This [Facebook] is a social networking site where the word ‘friend’ is used [in a way] that doesn’t have anything to do with the way before this Facebook.com ever existed—the way we used the word ‘friend.’

“So just because a person is connected to me on here in this manner doesn’t have anything to do with a personal relationship. I don’t have a personal relationship with this friend. We all live in a small town. I have heard both of you all’s names. I’ve heard [the daughter’s] name before we came in here today.

“And in fact, in the course of living here, we have all run into each other before. It—and I can say the same for [the daughter]. I can’t remember a specific time when that happened.

“But the establishment of an electronic friend over Facebook has absolutely no impact on what I have done and what I’m going to do.”

Reviewing the record below, the appellate court declined to reverse the rulings below based upon these issues:

The parties, in their appellate briefs, devote considerable argument to various secondary authorities assessing the abstract propriety of a “Facebook friendship” between, for example, a trial judge and a practicing attorney. However, the husband points out that at the new-trial-motion hearing the wife “offered nothing beyond the bare status of the parties’ daughter as a ‘friend’ of the judge.” Notably, the record reveals that the wife did not make any sort of showing with respect to the second of the two elements necessary to warrant the granting of a new trial based upon newly discovered evidence of a trial judge’s potential bias: that the pertinent evidence indicating bias that was discovered after trial “could not have been discovered before trial by the exercise of due diligence.”

For all that appears in the record in this case, the existence of the electronic connection between the parties’ daughter and the trial judge—whether indicative of a mere acquaintanceship as the trial judge noted on the record or something more private and sinister as insinuated by the wife—was discoverable by the wife’s counsel well before trial and does not amount to a basis for retroactively undoing the work of the trial court, especially given that under the law of Alabama “[p]rejudice on the part of a judge should not be presumed.”

(Citations omitted).

The husband has a point: all that the wife did in this matter was to disclose the existence of the friendship itself.  How long had the two been friends? Who sent the initial friendship request? Had they exchanged private messages? Had they posted on each others’ walls?  What information might the judge have had access to on the daughter’s Facebook wall that might have related to her family situation? None of those issues were explored, and as the court noted, presumably, all of this information could have been discovered before the trial.

A dissent by Presiding Judge Thompson did not discuss the social media issue.

Here we go again. It’s another hot coffee case.

According to NorthJersey.Com, there’s a brand new McDonald’s hot coffee case brewing. (Apologies for that pun). Here’s the info:

A 54-year-old Florida man is seeking damages from McDonald’s Corporation in a lawsuit filed in Hackensack, claiming that he suffered serious burns from a spilled cup of hot coffee while dining at a McDonald’s in River Edge.

This is not the first time McDonald’s coffee inspired a lawsuit.

Francisco Rafael Borbolla said in the lawsuit that restaurant workers gave him a cup of coffee without properly securing the lid when he ordered breakfast at the Main Street eatery in August 2011.

Borbolla’s attorney, Rosemarie Arnold, said the coffee spilled all over Borbolla’s lap as he sat down at a table, causing him “horrendous” second-degree burns that required a trip to the emergency room at the Hackensack University Medical Center.

…

Arnold insisted on Monday that Borbolla’s lawsuit is not frivolous.

“This is a serious case involving lack of due care on the part of McDonald’s,” she said. “If the naysayers saw the burns on my client’s genitals, they would be speechless.”

Again, let’s not confuse the issue of severe burns with liability. Simply because the coffee in question may have caused injuries, it does not mean that McDonald’s is liable.  That is a mistake that many have made in discussing the infamous Stella Liebeck McDonald’s hot coffee case. We’ve not yet  read the complaint, but if the news report is accurate, then the Plaintiff, Mr. Borbolla, took the cup of coffee from a McDonald’s employee, presumably from the front counter of the restaurant, made his way to his seat, and then spilled the hot beverage on himself as he proceeded to sit down at a table. The liability case will focus extensively on that brief journey.

We’ll keep you posted on this one. Our favorite part of the article is the following sentence, which also serves as the tagline to the AP file photograph of a McDonald’s logo: “This is not the first time McDonald’s coffee inspired a lawsuit.”