Here we go again. Just as we’ve discussed before, the courts are limiting overly broad social media discovery requests served by defense counsel. The latest example:  Smith v. Hillshire Brands, No. 13–2605–CM (D. Kan. June 20, 2014). At its essence, Smith is an employment discrimination case in which the pro se Plaintiff alleged violations of both Title VII and FMLA. The specifics of the dispute need not be spelled out in detail as you’ve heard it all before.

Now, there were a number of components to the discovery dispute in this matter, but the social media discovery requests at issue were these:

Request No. 15: All documents constituting or relating in any way to any posting, blog, or other statement you made on or through any social networking website, including but not limited to Facebook .com, MySpace.com, Twitter.com, Orkut.com, that references or mentions in any way Hillshire and/or the matters referenced in your Complaint.

Request No. 18: Electronic copies of your complete profile on Facebook, MySpace, and Twitter (including all updates, changes, or modifications to your profile) and all status updates, messages, wall comments, causes joined, groups joined, activity streams, blog entries, details, blurbs, and comments for the period from January 1, 2013, to present. To the extent electronic copies are not available, please provide these documents in hard copy form.

How curious to see a reference to Orkut in a social media discovery case! We wonder if the defendants had specific knowledge that the Plaintiff used Orkut or if that social media platform simply appears in all of their discovery requests.

Now, as you might imagine, Request No. 15 is legitimate and narrowly tailored, as it limits itself to social media postings relating to the employer or the events being litigated.

In fact, Plaintiff didn’t object to either of the requests, opting instead to produce – or claim to produce – all relevant documents. The dispute arose, however, when the employer defendant doubted that all documents had been produced.

Yes, the employer took the position that it could discover all of the Plaintiff’s social media activity as a result of his claims in the lawsuit. Skeptical of this argument, the Court noted:

Request No. 18 raises a more complex issue, as it seeks documentation of all of plaintiff’s activity on the named social networks since January 1, 2013, regardless of whether the activity has anything at all to do with this case or the allegations made in plaintiff’s complaint. Defendant asserts that this broad swath of information is relevant for at least two reasons. First, it “provide[s] a contemporary diary of Plaintiff’s activities, thoughts, mental/emotional condition, and actions,” which relate to plaintiff’s claim for damages arising from emotional distress. Second, it may support defendant’s “defense that Plaintiff abused his FMLA leave, which is the true reason for Plaintiff’s termination .” Defendant contends that the protective order governing this case adequately addresses plaintiff’s privacy concerns.

…

As it currently stands, the record does not support defendant’s extremely broad discovery request for all-inclusive access to plaintiff’s social media accounts. As plaintiff notes, such access could reveal highly personal information—such as plaintiff’s private sexual conduct—that is unlikely to lead to admissible evidence in this case. Information on social networking sites is not entitled to special protection, but a discovery request seeking it nevertheless must meet Fed.R.Civ.P. 26’s requirement that it be tailored “so that it ‘appears reasonably calculated to lead to the discovery of admissible evidence.’ “ “Otherwise, the Defendant would be allowed to engage in the proverbial fishing expedition, in the hope that there might be something of relevance in Plaintiff’s [social networking] account[s].” The court agrees with courts that have recognized that a discovery request for unfettered access to social networking accounts—even when temporally limited—would permit the defendant “to cast too wide a net” for relevant information.

As some defendants do, the employer in this case attempted to justify the breadth of the requests by pointing to the emotional distress damages alleged by the Plaintiff. This works, sometimes, and it’s not a bad argument. As social media profiles often showcase our daily lives and the emotions we experience in our lives, what better evidence can there be to support or rebut claims of emotional distress than such things? On this point, the court was cautious:

Based on the limited record before it, the court finds it prudent to follow what appears to be the intermediate approach taken by courts addressing this issue—to allow defendant to discover not the contents of plaintiff’s entire social networking activity, but any content that reveals plaintiff’s emotions or mental state, or content that refers to events that could reasonably be expected to produce in plaintiff a significant emotion or mental state. The court concludes that this approach will permit defendant to discover information relevant to plaintiff’s emotional state, which he has put at issue, while protecting plaintiff from a fishing expedition into every thought he reduced to writing on the internet since January 1, 2013.

But it was one remark by the court that caught our eye and forced us to recognize once again the potential perils of overly broad discovery requests. Behold, the court’s suggestion that such things could be turned around on defendants:

Indeed, if the court were to accept defendant’s position on the scope of relevant discovery, defendant would likely be unhappy with the ramifications. For example, every Facebook post of every Hillshire manager and supervisor involved in the decision to terminate plaintiff could be deemed relevant because it might show discriminatory pretext.

No one wants that. Let’s be careful out there, okay?

Above, you’ll find the cover of Superman & Savage Dragon: Chicago #1, published not so long ago in 2002. The plot, according to Comicvine, is as follows: “When Superman’s greatest foes leave their native Metropolis and join Chicago’s notorious criminal organization, the Vicious Circle, the call is put out for the Man of Steel to save the day.” (We hope that Supes had the opportunity to shop at Reckless Records while he was in the Windy City.). Whatever the case, we bring this cover to your attention today because our editor is in Chicago today attending the DRI Product Liability Committee Fly-In planning meeting. If you happen to find yourself at the same meeting today, please be sure to say hello!

Apropos of nothing, here is a link to a rejection letter that U2’s Bono received from a record label in May of 1979.

If you handle minor settlements in the State of South Carolina, you may want to review this new order from the South Carolina Supreme Court.

FYI: GWB attorney Luanne Runge, Immediate Past Chair of the Greenville Chamber of Commerce, has been named a 2014 South Carolina Super Lawyer in the area of Business Litigation.  For more information, please see here.

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

Let us direct your attention to Vazquez v. Buhl, — A.3d —-, No. 35319 (Conn. Ct. App. May 13, 2014).

As you can tell from the citation, that opinion is to be released tomorrow, technically making it jurisprudence from the future. (Technically, that’s how they roll in Connecticut.).

In that case, the court “confront[ed] Congress’ restrictions on defamation claims arising out of the Internet.” Essentially, as the court described them, the issues presented were these:

The plaintiff, Mitchell Vazquez, appeals from the judgment of the trial court rendered after the granting of the motion brought by the defendant NBCUniversal Inc ., to strike counts two (defamation), three (false light), and four (negligent infliction of emotional distress) of the plaintiff’s complaint. On appeal, the plaintiff claims that a motion to strike is not the proper procedural vehicle to decide the applicability of § 230 of the Communications Decency Act of 1996(CDA), 47 U.S.C. § 230 et seq. The plaintiff further claims that the trial court improperly granted the motion to strike because it incorrectly interpreted the “provided by another information content provider” language of § 230(c)(1).

We suspect that you’ll be able to find a full analysis of the case on the tech law blog in the days to come. However, we did want to direct your attention to our favorite sentence of the opinion:

Congress, in 1996, likely could not have anticipated the advent and popularity of Twitter, Facebook or eBay, the shift from print to online news, the proliferation of search engines, or the myriad other developments of the Internet.

Indeed, although we should note we here at Abnormal Use were using Yahoo, Lycos, AltaVista, and Wired Magazine‘s HotBot as search engines back in 1996. We didn’t make it onto eBay until 1998, though.

Whatever the case, it’s nice to see some nostalgia for the early days of the Internet in today’s court opinions.

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct brief interviews with law professors, practitioners, and other commentators in the field. For the latest installment, we turn to Kylie TenBrook, corporate counsel for Best Western International in Phoenix, Arizona. Her area of practice is employment law. We here at Abnormal Use first encountered Kylie earlier this year at the Hospitality Law Conference in Houston, Texas at which she presented the topic of “Pop Culture Employment Law” (which, in our opinion, included the best reference to Zoolander of the conference). After that, we knew we had to request an interview, which you can find below:

JIM DEDMAN: Generally, from the perspective of an in-house counsel, how has the rise of social media changed employment litigation?

KYLIE TENBROOK:  It’s changed it drastically. With the rise of social media, employees are not only saying and doing things in the workplace, they’re also saying and doing things on the Internet, and so you have to be cautious with respect to what your employees are doing and how they are behaving in this other public forum.

JD: What is a social media policy?

KT: Typically, a social media policy will set forth the standards that the company thinks employees should adhere to in using social media, and typically, that touches on anything from behavior that’s expected, to dealing with trade secrets of the company, to dealing with harassment or discrimination. It sets forth the behavior that employees are expected to engage in when using social media.

 JD: Now, you mentioned the word “cautious” a moment ago. What are some of the potential disadvantages of a social media policy in the employment context?

KT: Recent litigation with the National Labor Relations Board has focused a lot on social media, restrictions by employers on employees’ social media usage, and employers’ social media policies. The National Labor Relations Act, Section 7, applies to unionized and non-unionized work forces, and it prohibits employers from restricting employees [from] discussing the terms and conditions of their employment, among other things. And that’s really broad reaching under the current board’s spectre. They see almost anything that would be discussing work to be falling within Section 7 of the National Labor Relations Act. And they’ve taken a very aggressive approach with that, going not only after employers restricting employee actions on social media, but also going after social media policies as per se violations.

 JD: In light of those concerns, how should an employer navigate those waters and potentially protect its interests if an employee is commenting on the employer on social media?

KT:  . . . [W]henever you’re dealing with social media, employees, and employees talking about the employer on social media, you want to be careful. You want to sit back and look at the content of the message, and you want to make sure you’re involving your HR team and your legal team before taking any action. You need to determine whether the content discusses the terms and conditions of their employment, which I would argue is very broad, and likely will, if it’s the employer, but then you also need to make sure that it’s not violating any sort of policies that the NLRB would find unlawful.

 JD: So in the absence of a social media policy, what do you think are the best standards and practices for addressing these issues on a global scale for an employer?

KT: In the absence of a social media policy, you need to take a look at what your other policies provide . . . . What do your harassment and discrimination policies say? Interestingly, you do have issues where the two collide: The EEOC stance on what constitutes harassment and discrimination and the NLRB stance on social media. You really need to determine [whether] you are going to foster a workplace that is free of harassment and discrimination even if that goes up against what the NLRB says. You’ll also want to take a look at what your other policies say with respect to, for example, confidentiality, trade secrets, etc.  Those policies should apply equally to workplace conduct and social media conduct, which in my view, makes a social media policy unnecessary.

 JD: Now one of the popular topics in social media and litigation these days is the use of social media to investigate a claimant’s claims or damages in a pre-existing suit. The underlying claims of which may not have anything to do with social media itself, separate and apart from a social media policy or some of the concerns that you just expressed; what risks do employers face when monitoring employee social media use once that employee is a claimant or a plaintiff in a suit?

KT: Well, there are a couple risks. Usually, those risks come about in the form of hiring discrimination. When employees become a potential claimant, you’re going to be investigating them anyway, and if the social media is available, you should use it. However, your access to it should be limited in the first instance. In fact, I don’t think employers should be friends with their employees on social networking sites. You may find out things about your employees that you don’t need to know, and if you do make an adverse decision with respect to them later, what you saw on social media could be said to be the thing that is causing you to make your decision. For example, if you have an employee who is a certain religion, and you take action against that employee, and on their Facebook site, you’ve seen that they are of that religion, they may claim later that “Well, you’ve made this decision because of my religion.” So, there are some risks.

 JD: So, what would you do in a situation where you have pre-existing friendship or relationship with someone who becomes an employee? Is it wise to terminate the social media relationship in light of those concerns, or is there some middle ground there?

KT: I think it depends on the relationship. If there’s a reporting relationship, absolutely, you should terminate that friendship on social media. If there’s not a direct reporting relationship, I think there’s less risk, but to the extent that there’s a direct reporting relationship that really needs to stop.

BONUS QUESTIONS:

JD: What about your favorite lawyer on TV?

KT: I love “The Good Wife,” so I would have to say Julianna Margulies. One of my favorite shows. I also thought that “Boston Legal” was great with James Spader.

JD: What is the best depiction of an employment law issue in popular culture film or television in your view?

KT: “The Office.” “The Office” is just an amazing example of what not to do in every single work situation you could ever possibly think of.

JD: Any particular episodes stand out in your mind?

KT: Yes. My favorite one is the one where they each had a card that they put on their forehead identifying the participants as a certain race, ethnicity, etc., and they all had to communicate with each other in an entirely offensive way to figure out what the card on their forehead said. It was so over the top and so bad; it’s my favorite episode of all time.

JD: We’ve written before about “The Deposition” episode where Michael Scott is deposed which is, of course, fantastic. You have previously written about employment issues relating to late night television and Jay Leno in particular. What do you think of Jimmy Fallon’s new show?

KT: I’m very excited. I would rather stare at Jimmy Fallon for an hour than Jay Leno, any day.

BIOGRAPHY: Kylie TenBrook serves as corporate counsel for Best Western International, Inc. in Arizona. Previously, she practiced labor and employment law exclusively.

Above you’ll find the cover of the House of Secrets #43, published way, way back in 1961. As you can see, the two defendants find themselves in the “Court of Creatures” facing the death penalty. Yikes. We do not believe the Defendants will fare well in this forum.

Writing at The Mac Lawyer, Ben Stevens asks “What if You Could Charge an iPhone in 30 Seconds?” That would be something, wouldn’t it?

Tomorrow is the fourth anniversary of Professor Mark Osler’s Last Lecture at Baylor Law School (more about which in the image above). For even more on that occasion, see Professor Osler’s 2010 blog post  here. Now, of course, Professor Osler teaches at the University of St. Thomas Law School in Minnesota. Back in 2000, he joined the faculty of Baylor Law, where he stayed until 2010. By the way, you can read Professor Osler’s blog, Osler’s Razor, here, and you can follow him on Twitter here.

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

As you know, we here at Abnormal Use adore Twitter, and we often write about the perils of social media in litigation. That said, we were a bit unprepared for the trial court’s summary judgment ruling in Frost v. New Public News, L.L.C, No. 2014-CV-12052 (21st District Court of Harris County, Texas, April 1, 2014). In that case, a Harris County, Texas district court judge held that retweets are, in fact, endorsements as a matter of law.

Some background (from the court’s summary judgment order): Houstonian Elliott Frost served as the entertainment editor of The New Public News, one of those alternative news weeklies found in large metropolitan areas. As such, he reviewed films, authored record reviews, and generally commented upon the slings and arrows of the local and national entertainment industry. Just a few weeks ago, on Oscar night, when Academy Awards host Ellen Degeneres asked viewers to retweet her now infamous Hollywood selfie, Frost dutifully complied with the request from his official Twitter account. He later stated that he “only did so ironically, you know, because who still watches the Oscars in any other way?” The following day, the paper’s executive editor, Charles Cain, terminated Frost, noting that by retweeting Ellen’s selfie, he had endorsed it, thereby making a mockery of the paper’s “removed – and bemused – detachment from that which we cover.” Frost’s Twitter account was closely associated with and used to promote his work at The New Public News, and his Twitter biography identified him as the publication’s entertainment editor. However, the last sentence of his Twitter biography read: “Retweets ≠ endorsements.” See In re Application of the U.S. for an Order Pursuant to 18 U.S.C. |2703(d), 830 F.Supp.2d 114, 118 (E.D. Va. 2011) (“In addition to posting their own tweets, users may send messages to a single user (‘direct messages’) or repost other users’ tweets (‘retweet’)”).

For those who might not be familiar with Twitter, that caveat is invoked by Twitter users, primarily reporters, to preserve some semblance of journalistic objectivity.

Almost immediately after his firing, Frost retained an attorney and filed a lawsuit alleging wrongful termination in violation of public policy, intentional infliction of emotional distress, and the novel alienation of reputation cause of action (based on Frost’s belief that the paper’s characterizations of his actions had made him “seem uncool,” thereby depriving him of the benefits of his carefully constructed facade.). For its part, the defendant answered, asserting various affirmative defenses, but relying principally on the notion that Frost’s retweet was, in fact, an endorsement and inconsistent with the paper’s editorial philosophy. The parties submitted cross motions for summary judgment and a hearing was held early last week. (When asked about the great speed of this litigation, which went from the filing of a petition all the way to a summary judgment hearing in a matter of weeks, both parties replied that celerity was necessary to resolve the dispute before coverage of the twentieth anniversary of the death of Kurt Cobain could begin.).

In an affidavit submitted with his motion for summary judgment, Frost presented evidence of a storied career in journalism, which began a decade ago as a cub reporter for the Hill Valley Telegraph and a brief stint at the music desk of the New York Inquirer. He chronicled his long history of film and record reviews and noted that he always made certain to disdain a once subversive artist or director just at the precise moment he or she verged on mainstream success. Cain, in his own affidavit, noted that promoting the “commercial villains of Hollywood” via retweet was a “cardinal sin of the alt-newsweekly” and that the only commentary required of the Oscars this year was “the expression of woe at the death of Philip Seymour Hoffman.” Cain concluded: “When it comes to preserving our publications indie street cred, we simply cannot permit a managerial level employee to foster good will for or approval of the antics of mainstream Hollywood actors.” (Despite Cain’s affidavit testimony, Frost’s lawyer noted at the hearing that Cain is a big fan of “House of Cards,” featuring Kevin Spacey, who is prominently featured in the photograph which was the subject of the retweet in question. “[Cain] binge watched that show the second it was uploaded to Netflix,” Frost’s lawyer claimed.).

The trial court sided with the newspaper employer.  In its order granting summary judgment for the defendant, the trial court noted that the central issue in the case was the “status of the retweet.” Relying in part on Texas Rule of Evidence 801(e)(2), which provides that a statement is not hearsay if it is “offered against a party and is a statement which the party has manifested an adoption or belief in its truth,” the trial referenced, by analogy, the long tradition in the courts of finding that another’s statement was adopted by the declarant. He also turned to the plain meaning of the word “retweet,” and in so doing, examined the dictionary definitions of certain terms:

Webster’s Dictionary defines “tweet” as “a chirping noise,” while Dictionary.com tells us that the prefix “re-” “occur[s] originally in loanwords from Latin, [and is] used with the meaning ‘again’ or ‘again and again’ to indicate repetition . . . .” By retweeting the tweet of Ms. Degeneres, Plaintiff promoted her statement “again,” thereby adopting it as his own and rendering his purported disclaimer ineffective. Once Plaintiff formally adopted a statement which stood in stark contrast to the editorial mission of his employer, the Defendant was empowered to act and terminate his employment. Under the facts of this case, the termination was not, and could not be, in violation of Texas public policy. See Lovecraft v. Zuckerburg, 645 S.W.3d 173, 175 (Tex. App. – Austin 2011, pet. denied) (noting that once a Facebook user “likes” a status, comment, or photograph on Facebook, said user is estopped from contending that he or she dislikes it); In re: Friendster Litig., 567 F. Supp. 2d. 13 (D.S.C. 2004) ( “One is bound by one’s admissions on social media. Always.”); Cf. Appian Way, Co. v. Caecillius, Inc., 143 S.W.3d 521, 525 (Tex. App. – Houston [14th Dist.] 1997, no pet. h.) (noting that in cases involving the interpretation of Latin prefixes greater weight is always given to the party defending the claims at issue). As for Plaintiff’s argument that his Twitter biography rebutted any presumption of endorsement, the court need only look to the Texas Civil Practices & Remedies Code, which expressly states that any purported liability waiver containing the “≠” symbol is void under Texas law. See Tex. Civ. Prac & Rem. Code § 175.001, et. seq. Thus, we are forced to construe the Twitter biography as if there was no such attempt at waiver.

The Plaintiff has already announced his plan to appeal, and his attorney contends that they may petition the intermediate courts for a writ of mandamus to ensure that Frost returns to work and oversees any Cobain anniversary coverage.

The Plaintiff was represented by the Beaumont, Texas office of Goodman, Lieber, Kurtzberg & Holliway, L.L.P., while the defendant was represented by the Houston office of Gage Whitney Pace, L.L.P.

Above, you’ll find the cover of Star Trek #11, published not so long ago in 1990. As you can see, the story continues the story entitled “The Trial of James T. Kirk” which, we assume, was an eventful proceeding. To be honest, we’re not entirely certain what is occurring on the cover (which depicts what appears to be a futuristic courtroom). We’re particularly confused about the gentleman espousing curious dialogue and wearing what appears to be a 20th century suit. Oh, well. We assume there’s some explanation for all of that, and perhaps some day, we’ll track down this issue and learn for ourselves. But not today, dear readers. Not today.

A former member of Steely Dan has sued, well, Steely Dan, seeking past due royalties.

If you’re into property law, The New York Post had a fascinating piece this week on the tale of a hotel recluse who masterfully negotiated a $17 million buy out to finalize a huge Central Park development.

Philip Bump of The Wire has a fascinating piece on who, legally, owns the rights to the “selfie” photograph taken at The Oscars and heavily promoted by the show’s host, Ellen DeGeneres. You probably saw something about that now famous photograph week (likely because it was impossible to escape in the immediate aftermath of the Oscar broadcast). Bump’s piece is a nice read for law nerds; check it out here.

Whoa! Batman was in Charlotte this week! In fact, the picture depicts the Caped Crusader in a neighborhood very, very near our Charlotte office. Alas, we did not run into Batman that day.

Come on, you know you want to “like” the Abnormal Use Law Blog on Facebook. All you have to do is click here!

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 online venues.  Recently, his piece, “The Pitfalls of Replying to All,” was published by DRI Today.

We’ve written about selfies, and we’ve even written about ill-advised Facebook posts by lawyers. But today, we discuss the most dreaded technological faux pas of all: the reply to all.

Here’s the first two paragraphs of the article:

During those incredibly busy days all lawyers face, it is important to be mindful of the recipients of any electronic communication. There may be nothing more perilous than the “Reply to All” function on one’s email service; so dangerous is the function that the Wall Street Journal has called it “the button everyone loves to hate.”

Certainly it is now an ancient cliché to exclaim that technology has dramatically transformed the way we practice law. Owing to the daily advances in technology, courts and state bars continue to address emails and broader digital communications. For instance, in October, the North Carolina Bar Council issued a formal ethics opinion, the 2012 Formal Ethics Opinion 7, to address the issue of whether a lawyer commits an ethical breach if he or she, in response to a missive from opposing counsel, “replies to all” when that lawyer knows that the opposing counsel’s client was copied on the original email. The North Caroling Bar Council found that this “reply all” may not be an ethical breach, but that it is based on a fact intensive, totality of the circumstances analysis. In essence, the Bar Council found that “the fact that a lawyer copies his own client on an electronic communication does not, in and of itself, constitute implied consent to a ‘reply to all’ responsive electronic communication”). See id. In so doing, the Bar Council noted, “The fact that Lawyer B copies her own client on the electronic communication to which Lawyer A is replying, standing alone, does not permit Lawyer A to ‘reply all.’ While Rule 4.2(a) does not specifically provide that the consent of the other lawyer must be ‘expressly’ given, the prudent practice is to obtain express consent. Whether consent may be ‘implied’ by the circumstances requires an evaluation of all of the facts and circumstances surrounding the representation, the legal issues involved, and the prior communications between the lawyers and their clients.” See id.

For the full article, please see here.

Rest in peace, Harold Ramis, the famed comedian, Ghostbuster, and director of Groundhog Day, one of our favorite, favorite films. Above, you’ll find the cover of The Real Ghostbusters #180, published way, way back in the halcyon days of 1991. Pictured prominently on the cover is Dr. Egon Spengler, the character immortalized by Ramis in the film. (Note: The character of Spengler has his own Wikipedia entry, which you can read here.). Like many in our generation, we first encountered Ramis in Ghostbusters, one of the biggest films of 1984. Those were the days. But it was 1993’s Groundhog Day that was his masterpiece. Has any comedy ever captured the existential dilemmas of life so well? We think not.

Friend of the blog and Georgia lawyer Michael Scaljon put it this way:

Whether as a writer, director or actor, Harold Ramis touched many people’s lives with a sense of humor that was both subversive and sweet for over three decades.  There aren’t many comedians, comedic actors or writers with a success rate quite like his.  That’s the most amazing thing, not that he was funny, but that he was really funny for a really long time, and without ego.  His passing sucks.

Indeed. For another good Egon related comic book cover, please see here.

Friend of the blog Jill Wieber Lens, a law professor at Baylor University, has published a new article on products liability issues.  Specifically, the article discusses the post-sale duty to warn and how the version of same that most states have adopted is likely a burden to small businesses.  If you’re interested, please take a look here. You might recall that we have interviewed Professor Lens not once but twice, first here in December 2010 and again here in September 2013.

Don’t forget! You can follow the Abnormal Use law blog on Facebook here and on Twitter here!

According to the lead singer of Fishbone, Angelo “Dr. Madd Vibe” Moore (age 48) “[p]eople want to be on the edge when they go to a Fishbone show.”  Fishbone is an alt rock band formed in 1979, which plays a fusion of ska, punk rock, funk, hard rock, and soul. Nothing screams edgy like a 48-year-old vocalist and saxophonist nicknamed Dr. Madd Vibe hurtling himself into the crowd.   Fishbone doesn’t want to detract from the show’s theatrics and therefore does not issue warnings about its act. Well, those theatrics have cost Fishbone and Dr. Madd Vibe $1.1 million in compensatory damages and $250,000 in punitive. In 2010, Kimberly Myers was attending a Fishbone show put on by WXPN, a Philadelphia radio show, when Moore dived off the stage, colliding with Myer, knocking her to the ground, where she lost consciousness. But the show must go on, and Fishbone continued to perform as though nothing had happened.  As a result of the incident, Myers broke her skull and collarbone.  She now claims to suffer from memory problems, shoulder pain, and autoimmune problems that led to lupus. Apparently, Fishbone has been stage-diving for two decades and has been sued at least one other time for stage-diving related incidents.  According to Moore’s testimony, an ambulance is called to their venues once every couple of months.  Edgy. Apparently, the argument about stage-diving continues.  In 2013, the Ocean Collective and the Summer Slaughter Tour took shots at each other on Facebook.  The Ocean Collective was touring on the Summer Slaughter Tour.  The Ocean Collective lamented the “stupid ‘no jumping into the crowd’ rules” were boring them and told fans “if you are worried about ruining your make up, don’t be in the first row.”  Ash Avildsen, founder of the Summer Slaughter Tour, appropriately responded; including “[j]umping off things at venue doesn’t make you extreme, it makes you dangerous.”