Every now and again, some important legal news comes from our own backyard here in the Carolinas. None may be more important than the current legal battle over the New Year’s Eve “possum drop” (think Times Square, but with a possum) in Brasstown (Clay County), North Carolina. Earlier this year, People for the Ethical Treatment of Animals (PETA) filed suit seeking to have a North Carolina statute which suspends the application of wildlife protection laws to possums from December 29-January 2 each year (signed into law by Governor McCrory on June 11, 2015) declared unconstitutional. The law at issue was aimed to protect the annual Brasstown tradition of counting down the new year by lowering a live possum in a clear plastic box in front of hundreds of spectators.

The battle has been brewing since 2011 as PETA began challenging Brasstown’s use of a live possum for its signature event. A previous law authorizing the practice, which applied only to Clay County, was struck down by the court. As a result, the North Carolina Legislature took the matter statewide much to the chagrin of PETA. According to the complaint, the statute is unnecessary as previous “possum drops” have included such apparently acceptable substitutes as “a road-killed opossum (shampooed, blow-dried and frozen), a porcelain opossum figurine, an empty box decorated with photos of opossums, and a pot reportedly filled with opossum stew.”

The State moved to dismiss the lawsuit on the grounds that PETA lacked standing to challenge the constitutionality of the law. Last week, however, the Court denied the motion and set the case for a hearing on December 11th to determine whether Brasstown will be ringing in the new year with a live possum or some frozen, shampooed roadkill. Regardless of the outcome, we are certain the decision will be as influential as Marbury v. Madison. We will keep you posted in time for you to make your New Year’s Eve plans.

For those of us who practice in federal court, it is time to fasten our  seat belts, because the times they are a changin’. The Federal Rules of Civil Procedure have been amended, and the amendments go into effect on December 1, 2015.

Specifically, the following rules have been amended:

• 1 – Scope and Purpose
• 4 – Summons
• 16 – Pretrial Conferences; Scheduling; Management
• 26 – Duty to Disclose; General Provisions Governing Discovery
• 30 – Depositions by Oral Examination
• 31 – Depositions by Written Questions
• 33 – Interrogatories to Parties
• 34 – Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes.
• 37 – Failure to Make Disclosures or to Cooperate in Discovery; Sanctions
• 55 – Default; Default Judgment.
• 84 – Forms

A “redline” version of the amended rules can be downloaded here. Some of the changes are relatively minor, but Rule 26 has been extensively overhauled. For example, the following is the new scope of discovery:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any  party’s claim or defense and proportional to the  needs of the case, considering the importance of  the issues at stake in the action, the amount in controversy, the parties’ relative access to  relevant information, the parties’ resources, the  importance of the discovery in resolving the  issues, and whether the burden or expense of the  proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

So, evidence still mustn’t be admissible to be discoverable, but there are now additional considerations, including “the amount in controversy” and the “importance of the discovery in resolving the issues.” The Committee Notes make it clear that the amendments are intended to reduce the discovery burden on litigants and to ensure that discovery is proportionate to the size and scope of the case.

We here at Abnormal Use welcome the amendments, and we hope that the amended scope of discovery will simplify discovery and reduce the burden that discovery has historically placed upon litigants.

Movie goers are abuzz over the most recent installment of the James Bond franchise, Spectre. But who is James Bond? Apparently, the subject is up for debate.

In one case, in which the characteristics which make up James Bond were hotly contested, the Plaintiff pointed to various character traits specific to Bond, including “his cold-bloodedness; his overt sexuality; his love of martinis ‘shaken, not stirred;’ his marksmanship; his ‘license to kill’ and use of guns; his physical strength; his sophistication . . . .” Metro-Goldwyn-Mayer, Inc. v. Am. Honda Motor Co., 900 F. Supp. 1287, 1296 (C.D. Cal. 1995). At least one commentator has asked “[i]f James Bond is removed from international adventure and placed in a supermarket or an office-building with no villains to fight or women to seduce, would he still be the same character?” Samuel J. Coe, The Story of A Character: Establishing the Limits of Independent Copyright Protection for Literary Characters, 86 Chi.-Kent L. Rev. 1305, 1306 (2011). Differences aside, everyone can agree that Bond frequently seduces members of the opposite sex, and that he has done so quite prolifically over the course of his sixty year, 24 film career.

At least for Bond, there do not appear to have been any consequences to date for his behavior. If Bond would like that trend to continue, he should avoid the state of Mississippi.  Why Mississippi, you ask? In Mississippi, “[a]n unmarried female may prosecute an action for her own seduction, and recover damages.” Miss. Code. Ann. § 11-7-9; Mississippi Law of Damages § 19:3 (3d ed.). We know what you are thinking, that Bond can just stay out of trouble by only having social encounters with married women. Not so fast! In Mississippi, an aggrieved spouse can recover against a paramour for seducing the other spouse if he or she proves “(1) wrongful conduct of the defendant; (2) loss of affection or consortium; and (3) causal connection between such conduct and loss.” Carter v. Reddix, 115 So. 3d 851, 857 (Miss. Ct. App. 2012).   Unfortunately for Bond, his very essence is wrongful in Mississippi.

So, Bond would be wise to avoid Mississippi.  Otherwise, he risks paying some of his fortune to seducees, seducess suing in a representative capacity on behalf of similarly situated women, and/or spouses of seducees.

(Hat Tip: D. Scott Murray and Jacob T.E. Stutzman).

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 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.

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:

Today has been the kind of fast-paced, exciting day that you come to expect as a professional law librarian.

— Aaron Kirschenfeld (@kirschsubjudice) November 9, 2015

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.

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.

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.

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.

“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:

omg this entire intro is just amazing cc @sarahjeong pic.twitter.com/nFtLVm8DLs

— pacerrssscraper (@pacerrssscraper) November 7, 2015