We must direct your attention to the brand new opinion in In re Christus Health Southeast Texas, No. 09–12–00538–CV (Tex. App. – Beaumont March 28, 2013, orig. proceeding) (per curiam) [PDF], in which the propriety of Facebook discovery is explored. This suit in question is a wrongful death and survival action arising from a 2009 cardiac catheterization.  The Plaintiffs’ decedent died the day after the procedure. Two requests for production were at issue in the mandamus proceeding, although we’re chiefly concerned with the second one, which asked the Plaintiffs “to produce copies of any postings pertaining to Arthur or Arthur’s death on any social media site.”

The court described the Plaintiffs’ objection to the social media discovery request as follows:

They also objected to Christus’s request for copies of postings on any social media sites, claiming the request was “an invasion of privacy and any such information would be unreliable and constitute hearsay and a fishing expedition and this request is meant for the purpose of harassment.” We note that the Lowes presented no evidence the discovery requests at issue in this proceeding were burdensome, asserted no claim that the information sought to be discovered was privileged, nor did they provide the trial court with a privilege log.

The defense filed a motion to compel, which was denied. Accordingly, the defense then sought a writ of mandamus.

In denying the defendant’s petition for writ of mandamus, the court noted:

The other request at issue in this mandamus proceeding asked the Lowes to produce “[p]hotocopies of postings by any plaintiff pertaining to Arthur Lowe or his death on Facebook or any other social media site.” The Lowes objected that “[s]uch request is an invasion of privacy and any such information would be unreliable and constitute hearsay and a fishing expedition and this request is meant for the purpose of harassment.”

With respect to request for copies of posts regarding Arthur before he died, the request is not limited in time. While the time period of relevant discovery while Arthur was alive may be broad, it is not unlimited. “Discovery orders requiring document production from an unreasonably long time period … are impermissibly overbroad.” While one of the plaintiffs indicated in her deposition that she had placed posts about Arthur on a social media site, the request at issue in this proceeding was not limited to those posts, nor was it limited to the period after Arthur’s death. While the Lowes are seeking damages for their mental anguish, and the statements the Lowes made about Arthur’s death are within the general scope of discovery, the Lowes did not establish that they had an expectation of privacy in their statements on social media sites. Nevertheless, a request without a time limit for posts is overly broad on its face. We conclude the trial court did not abuse its discretion by denying the request for posts because it was unlimited in time.

(citations omitted).

And there you go. This case suggests that social media discovery is no longer a novelty and that requests direct to social media profiles are just like any other such requests.

That’s probably a good thing.

We hope you enjoyed Monday’s post – our fourth April Fool’s Day blog entry.  Though some find April 1 joke posts to be silly and unnecessary, we have to admit that we love writing them.  If only you, our dear readers, loved reading them.  Maybe you do. If you missed it, the title was “North Carolina Court Declares Harlem Shake ‘Over,’ Enjoins YouTube From Accepting Further Videos Depicting Same.”  Yes, yes, we wrote a post about a dying meme, but the best part is that the post is about the fact that the meme is dying. See how we were capitalizing on it and distancing ourselves from it, too? That’s the only way to be.

By the way, in the interests of completism, we present these links to our three past April Fool’s Day Posts:

“American Bar Association Denies Provisional Accreditation To Miskatonic University School of Law” (April 1, 2012)

“Star Wars Prequels Unreasonably Dangerous and Defective, South Carolina Federal Court Finds” (April 1, 2011)

“Unsatisfying Snickers Bar Unreasonably Dangerous and Defective, Texas Court Holds” (April 1, 2010)

So, even a few days after this year’s April Fool’s Day, you can now go back and revisit our posts from April Fool’s Days past.  Better late than never, eh? Enjoy.

By the way, above, you’ll find the cover of Franklin Richards: April Fools #1, published by Marvel Comics not so long ago in 2009.  Franklin Richards, as you may know, is the son of Mr. Fantastic and the Invisible Woman, both of the Fantastic Four.  His relationship to April Fool’s Day remains unknown to us.

The University of Pennsylvania (aka “Penn”) is home to the world renowned business school named the “Wharton School.”  In fact, the name “Wharton School” is more well-known than “Penn” itself, which is often confused with Penn State.   A lawsuit recently filed by Penn alleges that another company infringed on its trademark through use of the Wharton name.

Penn brought suit in federal court against the California based Wharton Business Foundation for its use of the word “Wharton.” According to its website, the Wharton Business Foundation offers business education and consulting services.  The education component is actually called the Wharton Business Foundation University.  Penn alleges that the Wharton Business Foundation has no legitimate reason to use the name “Wharton” in its brand.  The “Meet Our Team” section of the website doesn’t list anyone with the Wharton name.

The Wharton School bears its name because it was established in 1881 via a donation from Joseph Wharton.  Penn claims it has used the Wharton registered mark since 1881 for business education and since 1953 for business consultation.  The complaint, which is available on PACER, alleges that the Wharton Business Foundation’s name creates “a likelihood of confusion in the marketplace” and “a false impressing in the minds of consumers that WBF is affiliated with, endorsed or sponsored by [Penn], particularly the Wharton School.”

We’ll be keeping our eye on this suit.

On a side note, why don’t law schools have the type of “bling” that business schools have?  Having attended both law school and business school, I suspect it is because most lawyers block out all memories of their learning years.  Business school, on the other hand, is an enjoyable experience.  Also: Most business school graduates actually find jobs in their field, and thus, have money to donate.

Walter Olson’s recent tweet about social media spoliation got us thinking about a familiar 2006 case on that topic.

These days, you can assume that a Plaintiff maintains some type of social media presence.  We have previously discussed the manner in which this type of evidence can be developed and explored.  However, because Plaintiffs’ attorneys have become somewhat more savvy on these issues, you may wish to warn them outright not to destroy any such evidence.

Which brings us to Torres v. Lexington Ins. Co., 237 F.R.D. 533 (D. Puerto Rico 2006). As a 2006 case, it’s ancient in social media time. But it’s so directly on point that we still typically enclose a copy of it when we send an opposing party a social media preservation letter.

In that case, Judge Gelpi spells out precisely the point that Plaintiffs should not, and must not, delete or otherwise destroy relevant social media evidence.  The Plaintiff, a spa customer, claimed she was assaulted, and as a result, developed “intense mental anguish, feelings of shame, humiliation, depression, unworthiness, weeping and has been forced to undergo psychological treatment and therapy.” She also claimed that her job and marriage had suffered as a result of the alleged incident (which is not detailed in the court’s order).

At some point, defense counsel found the Plaintiff’s websites and notified her attorneys.  Not long thereafter, the websites vanished from the Internet, prompting the defendant to file a motion to dismiss for fraud on the court.  The district court noted:

At some point during the case, defendants learned outside of discovery that [Plaintiff] possessed several web pages depicting an active social life, and an aspiring singing and modeling career. These web pages were in direct contradiction to [Plaintiff’s] assertions of continued and ongoing mental anguish. At the time the web pages were discovered, neither plaintiffs nor plaintiffs’ counsel had knowledge that defendants had discovered the pages. Defendants were able to download and print out much of the content of the web pages and subsequently informed plaintiffs’ counsel that eliminating or altering the websites could be considered spoliation or evidence tampering. Two days after plaintiffs were alerted about defendants’ knowledge of the websites, the same were deleted in their entirety. No plausible explanation has been offered for this. Defendants now move for sanctions, to wit, that [Plaintiff’s] case be dismissed or in the alternative that her damages be eliminated or reduced.

Although the court did not dismiss the case outright, it did sanction the Plaintiff, “eliminat[ing] all possibility of introducing evidence of continuous or ongoing mental anguish on her part.”  In so doing, the court stated as follows:

In this case, [Plaintiff] did not make it known to defendants that she had an aspiring modeling or singing career. In fact, she attempted to depict the life of a recluse with no or little social interaction. Instead, [Plaintiff] led an active social life and announced this information to the world by posting it on very public internet sites. Then, immediately upon defendants’ discovery of evidence, which could be used to contradict or impeach her allegations, [Plaintiff] removed the information from the internet. This is the type of unconscionable scheme the court seeks to deter.

It doesn’t get any more clear cut than that.

Accordingly, when we become aware that a Plaintiff has a potential presence on the internet, we will serve a preservation letter on the Plaintiffs’ attorney and enclose a copy of this case.  As a practical point, it is best to capture and preserve as much of the publicly available version of the Internet site as possible, so that one can compare what may have once existed with what is later deleted.

Not too long ago, friend of the blog, Erik Mazzone of the North Carolina Law Blog, put together what he called a Legal Geek Meetup here in Charlotte.  This event was officially sponsored by the North Carolina Bar Association’s Law Practice Management Section (of which Mazzone is director). Assisting in the arrangements were two local Charlotte lawyers, myself and Ketan Soni.  (You didn’t think they would have a legal geek meeting in Charlotte without having us involved, did you?) The purpose of the first such event was to bring together like-minded young lawyers with an interest in social media and technology.  Here is the official description of the series of events:

Legal Geek events are designed to help lawyers and legal professionals interested in practice management and technology learn from each other. Each meetup focuses on a different topic, and may occasionally involve short presentations. While offered primarily to NCBA members, all local legal professionals are welcome to attend. There is no cost to attend these events.

The event was a success. Held at Charlotte’s new Heist Brewery, the meetup attracted at least 20 or so young lawyers.  (Even fabled North Carolina law blogger Lee S. Rosen made an appearance.). It was a fine – and low pressure – networking event (and by its very nature, it did not include a formal presentation or CLE credit).  Many, but not all, of the discussions had by the participants centered around tech or tech culture: Twitter, blogs, and using same to advance one’s practice. Basically, it was a just a fun get together for folks unafraid to refer to themselves as “legal geeks.”

There are upcoming events in Raleigh/Durham (April 11), Fayetteville (May 14), and, of course, Asheville (June 19).

If you’re interested in becoming a part of the events, see here.

This morning, a superior court judge in Wyatt County, North Carolina granted a citizen’s request for a declaration that the Harlem Shake was “over as a meme” and issued a corresponding injunction prohibiting YouTube from accepting further videos depicting or otherwise seeking to capitalize upon the phenomena.  See Yorke v. YouTube, LLC, et. al., No. 2013-CVS-20213 (N.C. Sup. Ct. April 1, 2013).

This is big news.

Filed in mid-March by North Carolina resident Robert Yorke, the complaint sought a declaration that the “Harlem Shake is, and of right ought to be, over and done as a meme” and requested injunctive relief to facilitate the declaration.  The Plaintiff, a self professed “social media scholar” living in Western North Carolina, found himself irked by the increasing deluge of “Harlem Shake” videos he encountered across the web. In an affidavit accompanying the motion, Mr. Yorke complained that he could not access Facebook, Twitter, Orkut, or even Friendster, without seeing at least two “Harlem Shake” parody videos.  Claiming that the ubiquitous meme caused him personal injury, “an unyielding ennui,” and business interruption, he also seeks money damages and class certification. He conceded that the meme could, for at least some initial period of time exist and begin to wither away, but argued that time had long since passed.

A hearing on the request for declaratory relief and the accompanying motion for temporary injunction was conducted last week.  This morning, the court issued its first order in the case granting the Plaintiff’s request for the aforementioned equitable relief.

Citing Wikipedia, the court defined the “Harlem Shake” as follows:

The videos usually last about 30 seconds and feature part of the 2012 song “Harlem Shake” by American electronic musician Baauer. Baauer’s song starts with a 15 seconds intro, a bass drop, then 15 seconds with the bass, and a lion roar at the end of the first 30 seconds. Usually, a video begins with one person (often helmeted or masked) dancing to the song alone for 15 seconds, surrounded by other people not paying attention or seemingly unaware of the dancing individual. When the bass drops, the video cuts to the entire crowd doing a crazy convulsive dance for the rest of the video. The dancing style should not be confused with the original Harlem Shake dance. Additionally, in the second half of the video, people often wear a minimum of clothes or crazy outfits or costumes while wielding strange props.

(The court also apparently cribbed a bit from this article from The Atlantic by Kevin Ashton in reciting the history of the meme.).

Noting a state’s compelling interest in the “orderly processing and disposal of cultural fads,” the court invoked its inherent power in granting the request. In so doing, the court relied heavily on the American Law Institute’s Restatement (2d) of Memes, which provides:

Memes are, by their very nature, ephemeral. The accelerated pace of digital culture demands that certain Internet fads be summarily dismissed to make way for the next viral video or concept. However, as initially popular memes continue to permeate the outer reaches of Internet culture, the initial perpetrators and early adopters of such a meme will grow increasingly more weary of them. Accordingly, formal judicial rejection thereof is sometimes appropriate when the meme outstays its welcome. Although litigation surrounding the evolution of a meme is usually inappropriate, a court may rely on its inherent power to steward a stale meme more quickly to its inevitable demise.

Restatement (2d) of Memes § 135 (2012); see also In re Gangnam Style Litig., No. 12191975, MDL–3500 (E.D. Tex. January 29, 2013) (noting “short lived” nature of memes and creating three pronged test to determine appropriateness of judicial intervention in same).

Noting that North Carolina had not yet adopted § 135 of the Restatement, attorneys for YouTube argued against the injunction, noting that the matter was “nonjusticiable” in the courts and that a legislative solution would be more appropriate under the circumstances.  In re: Morrissey Concert Cancellation Litig., 872 F.3d 606, 615 (D. Colo. 2013) (finding that the court’s could not fashion a remedy to prevent the British singer from canceling future concerts as such an order would be “futile, fruitless, and without any hope of earning obedience,” and thus, the issue was more apt to be addressed by the legislative branch).  In advancing this argument, YouTube’s counsel directed the court’s attention to the recent Anti-Rickrolling Statute adopted by Texas State Legislature.  See Tex. Civ. Prac. & Rem. Code Sec. 174.001, et. seq (prohibiting any and all attempts within the state to fool, deceive, or otherwise trick a person into viewing a video featuring and/or otherwise depicting the singer Rick Astley).  When the court rejected that argument from the bench, counsel for YouTube noted that the meme was “already dying an albeit slow death” and the parties “need only await its natural end.” Rejecting that contention as a “backwards mootness argument,” the Court proceeded to grant the Plaintiff’s request from the bench.

Under the order, YouTube has five days to develop a system to prevent uploading of additional “Harlem Shake” videos.  The order also imposed on YouTube a duty to monitor its video library for pre-injunction videos which are “particularly lame” and remove them.

The court made a number of other rulings, as well. YouTube scored a minor victory when it successfully sought to exclude the proposed expert meme testimony of Antonie Dodson at the hearing.  Further, the court denied the motion to intervene filed by a series of  YouTube commenters on the grounds that they were vexatious litigants, which the court assumed, since the movants were YouTube commenters.

A hearing on YouTube’s motion for partial summary judgment on Mr. Yorke’s alienation of affection claim has been set for May 6.

We’ll continue to keep you apprised on this case as it develops.

Happy Easter from the Abnormal Use law blog and Gallivan, White, & Boyd, P.A.! We hope that you are your family have a wonderful and safe holiday. In honor of the occasion, above, you’ll find the cover of Yogi Bear’s Easter Parade #2, published way, way back in 1978. Note that Yogi apparently teams up with a host of famed characters, including Scooby Doo, Fred Flintstone, George Jetson, Top Cat and Quick Draw McDraw!

Above, you’ll find the cover of Captain America #611, published not so long ago in 2010. This issue features the first installment of the storyline “The Trial of Captain America,” which you may recall we previously mentioned here and here. Apparently, Captain America is taken into custody by the law enforcement authorities, but they fail to remove his mask. How do they log him into the system without removing his mask and determining his identity? How do they ascertain any prior offenses or warrants if they do not confirm his real name? Is it the respect and awe that the officers must hold for the fabled Captain American that prevents them from performing their routine? Isn’t there a safety concern in allowing a suspect to remain in a costume? Why do superheroes always receive special treatment from cops or prison wardens with respect to the retention of their costumes? We may never know.

Robert Kessler of The Atlantic Wire asks: “Why aren’t there cameras allowed at the Supreme Court again?”

Buzzfeed, as you know, is always making lists. List after list and list. But here’s one we couldn’t resist sharing: “The 33 Most Beautiful Abandoned Places in The World.” There are some hauntingly beautiful – or beautifully haunting – photographs in that collection, so we encourage you to pause today from your quotidian toil and investigate.

This weekend, of course, is Easter. We here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish you and your family a happy and safe Easter.

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line! You know you want to! Did you know, also, that you can follow our lawyers Gray Culbreath and Mills Gallivan on Twitter, as well? Since it’s #FollowFriday on Twitter, why not give them a follow today as we head into the weekend?

Someone needs to tell McDonald’s to take down the “Please think of some ridiculous reason to sue us” sign firmly planted on the grounds of its corporate headquarters. The fast food giant is back in the news after being sued by Chicago, Illinois woman, Anishi Spencer. According to a report from the Huffington Post, Spencer claims that in February 2012, her 2-year old and 3-year old sons discovered a used condom on the floor of the restaurant’s play area.  At some point thereafter, the 2-year old allegedly coughed up a piece of the condom, and both boys required medical attention.  The suit claims that McDonald’s failed to detect “deviant” activities on-site.  On behalf of herself and her two boys, Spencer seeks at least $50,000 in damages.

Call us crazy, but we would have thought Spencer herself would have had some duty to supervise her own old children.  Such duty should include stepping in to avoid condom interaction.  This situation suggests one of two possibilities, neither of which are good for Spencer:  1) either Spencer was supervising and failed to take any measures to prevent her child from encountering the condom, or 2) she was not supervising at all and should share the blame.  The only other explanation – the condom had nothing to do with McDonald’s at all.

Again, we have no way to verify Spencer’s claims or to attest to McDonald’s cleaning procedures.   That being said, this case is simply another example of the need to gather all the facts before the judgment.

While killing time recently, I ran across this rant posted on the Opinion page of CNN.com, written by Dean Obeidallah, who is apparently “a political comedian,” and a former attorney, among other things.  Well, we don’t think he was trying to be funny in this column.

In fact, I take issue with his tone.

Obeidallah’s basic point is that—wait for it–America is too litigious.  Certainly not new material.  He uses a recently-filed lawsuit against the TV doctor personality “Dr. Oz” as the latest evidence for this theory.  Apparently, a diabetic man is suing Dr. Oz because the remedy Dr. Oz suggested caused the man to suffer burns on his feet.  Of course, as Obeidallah notes, the gentleman seems to have ignored some of the basic instructions for the remedy.  You can read more about the lawsuit here.  Obeidallah then continues his column by providing a list of other “ludicrous” lawsuits (although we noticed that he does not mention the infamous Stella Liebeck McDonald’s Hot Coffee case).

Obeidallah’s verdict on the reasons for our litigious society?  A perfunctory “Blame the lawyers” slogan, especially plaintiffs’ personal injury lawyers, who hope for a quick settlement “so that they can do as little work as possible before seeing their own payday,” and “taking a questionable case that will reap you some media coverage and money.”

Now, we here at Abnormal Use have worked with–and against–a number of hard-working, honorable plaintiffs’ personal injury lawyers who are not just good, but great, attorneys.  We’ve also worked with some who didn’t quite hit the mark.

But we’ve met and worked with just as many great and not-so-great lawyers on our own side of the bar.

Despite his anger, Obeidallah does make one point that we don’t see often in such analysis.  There are a “growing number of lawyers out there struggling to make ends meet,” he says.  He might be on to something.  According to a recent Wall Street Journal column, there are approximately 21,800 new legal jobs each year for the approximately 44,000 law school graduates.  Those numbers don’t crunch.  Hungry lawyers, Obeidallah suggests, might be more willing to take a questionable case simply to keep their practices afloat.

There is, of course, a larger conversation in the legal community these days—about the role of law schools, the quality of legal education, and the available jobs for graduates and seasoned lawyers alike.  We will continue to monitor these issues, comment upon them, and invite your input, as well.  We hope that the tone of these discussions remain civils, and don’t always have to be accompanied by column headings as abrasive as Obeidallah’s “Dr. Oz suit is another reason people hate lawyers.”

We think these heavy subjects deserve a more nuanced approach than that.