Above, you’ll find the cover of Four Color #56, published way, way back in 1944. Prominently depicted on the cover is hero detective Dick Tracy. Now, we here at Abnormal Use aren’t criminal lawyers, but we’ve watch enough television to know that the investigating detective probably shouldn’t be touching the body with his bare hands before it’s even been removed from the scene of the crime.  What the heck? Maybe criminal procedure was a bit different back in 1944.

The Rolling Stones have started up litigation against a company alleging misusing their super famous logo.

Walter Olson has the latest on the feud between the Consumer Products Safety Commission and the manufacturer of Buckyballs.  We’ve previously written on this controversy here and here.

If you’re looking for photographs of abandoned tanks, you are in luck.

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Let us turn to Jewell v. Aaron’s, Inc., No. 1:12–CV–0563–AT (N.D. Ga. July 19, 2013), for another social media discovery request. You know how we love to talk about such things.

The request at issue, to be served on a “randomly selected” set of 87 opt-in plaintiffs in the overtime/wage class action, was:

Request for Production No. 4: All documents, statements, or any activity available that you posted on any internet Web site or Web page, including, but not limited to, Facebook, MySpace, LinkedIn, Twitter, or a blog from 2009 to the present during your working hours at an Aaron’s store.

At first glance, that seems like a relatively broad request, as it seeks production of all social media posts from 2009 to present.  (In fact, the phrasing of the request, particularly its reference to activity “posted on any internet Web site,” suggests that all comments to blog posts, newspaper articles, or any other website in general would also be responsive to the request.). But note that it limits the request to posts made “during your working hours at an Aaron’s store.”

Might that make the request more palatable to the court?

Let’s see.

In response to the Plaintiff’s objection to the request, the court noted as follows:

Plaintiff objects to the request as unduly burdensome because identifying, obtaining, and producing all statements posted on Facebook or other social media sites from 2009 to the present during work hours of all 87 sample opt-ins would be a “tedious and incredibly time-consuming task.” Plaintiff contends that responding to such a request would require Plaintiff’s counsel “to assist the opt-ins in making a day-by-day, hour-by-hour search of the websites, comparing the date and time of each posting with the schedule of workdays and hours to determine if they coincided.” By way of example, Plaintiff contends that Facebook does not contain a search function, Facebook posts do not contain a timestamp, and such information can only be obtained by “individually interacting with and clicking on each post.” As a result, Plaintiff “estimates” that such a task could require anywhere from 1,323 hours to 26,462 hours depending on the number of daily posts made by each opt-in plaintiff. Plaintiff offered no evidence to support these assertions.

The Court has attempted to verify the accuracy of Plaintiff’s assertions and the potential burden imposed by Defendant’s request. Facebook employs a feature that allows a user to download her Facebook data, including “timeline” information, “wall” postings, activity log, messages, and photographs directly from the website. Once downloaded, the user may view all posts/activity in a single document in chronological order with a date/time stamp.

Indeed. Defense counsel are catching onto this technique and sometimes asking Plaintiffs directly to download all of their Facebook data and produce it directly.

However, the Court didn’t buy it, noting that the “exemplar evidence” from the named Plaintiff “did not persuade [it] that the Facebook postings will show, contrary to Plaintiffs’ claims, that they were not forced to work through their meal periods,” which was apparently one of the issues raised in the case.  In coming to that conclusion, the Court agreed with the Plaintiff that “whether or not an opt-in plaintiff made a Facebook post during work may have no bearing on whether or not the opt-in plaintiff received a bona fide meal period as defined in 20 C.F.R. § 785.19.”

In the end, the Court found that the defendant’s justification was mere hope that they might uncover relevant evidence and that the burden imposed upon the opt-in plaintiffs would be too great.

Oh, well.

Today, Abnormal Use continues its series, “Abnormal Interviews,” in which this site will conduct interviews with law professors, practitioners and makers of legal themed popular culture. For the latest installment, we turn to Daniel Hartis, author of the relatively new book, Charlotte Beer: A History of Brewing In The Queen City. Why the author of a book about local beer? The answer is two-fold. First, we here at Abnormal Use love to experiment (in moderation of course) with the greatest craft beers our region has to offer. (You may recall that we once interviewed Adam Avery of the Avery Brewing Company regarding his company’s Collaboration Not Litigation Ale.). Second, Mr. Hartis, in his book, explores not just the modern culture of craft beer but also the evolution of the legal and political climate governing breweries in his mighty tome. That gave us just enough of a hook to interview him on our legal blog (which we probably would have done anyway, despite that hook, due to the cool topic).  Mr. Hartis was kind enough to submit to a brief email interview, which appears as follows.

ABNORMAL USE: What is it about Charlotte, North Carolina these days that is so favorable to new breweries?

DANIEL HARTIS: Charlotte has become well-known as a city of transplants, and I think the current craft beer scene in the city is proof of that. Some of these transplants come from other cities with established beer scenes, and I think they expect that here and want to support the local breweries. Charlotte is one of the fastest-growing cities in the nation as well, which doesn’t hurt. We may not match Asheville in terms of numbers of breweries, but a larger population means we’ve probably got a larger number of craft beer drinkers.

AU:  What do you think is the biggest legal obstacle to small brewers in North Carolina?

DH: Up until recently, I would have said zoning. Breweries could only exist in Charlotte’s industrial areas, which really limited them in terms of locations. The City of Charlotte’s planning department, however, just passed a microbrewery text amendment that allows breweries to exist in additional districts. Shortly after, The Olde Mecklenburg Brewery announced that they’d be moving into a larger building down the street, and The Unknown Brewing Company also leased a building just three blocks away from the stadium. Let’s hope that amendment also opens doors for Free Range Brewing, Sycamore Brewing, Regimental Brewing and Dukbone Brewing Co.

Intellectual property rights continue to be an issue, and several lawsuits have been filed in recent years over trademark disputes. Waynesville’s Headwaters Brewing Company rebranded to BearWaters Brewing Company earlier this year after receiving a cease-and-desist letter from Victory Brewing in Pennsylvania. Craft breweries will typically avoid litigation, but expect these trademark disputes to rise in relation to the number of breweries. After all, there are only so many hop puns out there!

AU: What do you think is the biggest obstacle to consumers of craft beer in North Carolina?

DH: To be honest, I think consumers have it pretty good here in NC. In addition to the state’s many great breweries, NC is also home to bars and bottle shops devoted to craft beer. Some of the nation’s best breweries distribute here as well, and if you compared our selection of brands to other states I think you’d come away impressed (SeekaBrew.com is a good site for this).

Speaking personally, I would like to see our breweries here in Charlotte and the rest of NC start packaging in 12 oz. bottles or cans. I understand why they don’t, as bottling and canning lines are expensive and an investment that many young breweries just can’t make. Down the road, though, I hope it’s a lot easier to go into your neighborhood bottle shop and pick up a six-pack of local beer, as opposed to a growler of it at the brewery.

AU: What do you think has been the biggest legal victory for the craft beer movement in the Carolinas?

DH: Without a doubt, the biggest legal victory for craft beer in North Carolina’s history was when Pop the Cap was passed in 2005. Before this point, only beers at 6 percent ABV or less could be sold in the state. This kept out not just a certain craft beer here or there, but entire styles of beer. Go into any bottle shop in Charlotte and I think you’d be hard pressed to find all that many under 6 percent, though session beers are on the rise (and I’m a big fan of lower-alcohol beers, but it’s nice to have options!).

AU: Historically, North Carolina, and Mecklenburg County, in particular, established Prohibition locally before the 18th Amendment became the law of the land nationally. How did we get from there to here?

DH: Before Prohibition, the nation was dotted with small, local breweries, and only recently did the country surpass the number of breweries it boasted prior to “the great experiment.” The reason breweries are popping up all over the country is the same reason they’re thriving in Charlotte: people want to support local businesses, and they want to enjoy a well-crafted beer. Part of it can also be attributed to the aforementioned transplants, I think. The Prohibition sentiment was especially strong in “the Bible belt,” and perhaps a more diverse population helped diminish those attitudes toward alcohol.

AU: How did you come to write a book about the Charlotte craft beer community?

DH: I founded CharlotteBeer.com in January of 2011 out of a desire to write about beer and a way to keep all of Charlotte’s beer information in one central place, for my needs as much as anyone else’s. I went to school for journalism, and so I always tried to maintain a standard of quality writing on the site, even if I was just throwing up a quick paragraph about an event. In the summer of 2012, The History Press – publishers of beer books for cities like Asheville, Baltimore and Charleston – approached me to see if there was enough of a history here in Charlotte to merit a book. At that point, my knowledge of the beer history here started from 2009, the year the Olde Mecklenburg Brewery came to town. After doing some research, though, I discovered a healthy portion of brewing history, especially in regards to the ‘90s breweries. I was excited to pursue that further and learn more, and so I agreed to take the project on.

AU: How has the expansion of social media assisted in the growth of the craft beer movement?

DH: I think social media plays a key role in the craft beer world, though perhaps not more so than in any other industry. When I started the blog a couple of years ago, Blair (@QueenCityBeer) and I were the only ones using the #cltbeer hashtag on Twitter. Over time it really caught on, and now many of the city’s breweries, bars, restaurants and bottle shops use it to share Charlotte beer news, specials or events. It allows them to reach the true beer geeks in the area that follow the hashtag, just as it allows them to share beer-related info with people who may be unfamiliar.

I’ve come to meet so many good people just by talking about beer on Twitter or Facebook. What might seem like a cursory chat on the Internet often develops in a “real-life” friendship, and I’m very grateful to have made so many friends this way.

BONUS QUESTIONS:

AU: Favorite North Carolina beer?

DH: With the number of breweries we have in the state producing great beer, it would be tough for me to choose just one. And that’s the beauty of our beer scene here in Charlotte, too: we are privileged to have a very diverse group of breweries that ensures there is something here for everyone.

AU: Favorite non-local beer?

DH: That really is a difficult question. If I had to choose a favorite, I think I’d go with Founders Brewing’s Kentucky Breakfast Stout (aka KBS). It’s brewed with coffee, chocolate and oatmeal, and then aged in bourbon barrels for a year. And yes, it’s as delicious as it sounds.

AU: Favorite style of beer?

DH: I can honestly say there’s not a style of beer I dislike. For that reason, it’s tough for me to nail down just one favorite style. The mood I’m in, the weather, what I’m doing at the time – these can all dictate the type of beer I drink. That being said, I really enjoy stouts, Baltic porters and smoked beers.

AU: Favorite beer related website?

DH: I regularly visit Beer Pulse for beer news, Oh Beautiful Beer for beer design and Good Beer Hunting for its unique photos and writing. Oh, and First We Feast offers a really fun look at beer (and food) through a pop culture lens.

AU: Favorite song about beer?

DH: It’s not exactly a testament to the responsible enjoyment of fine beverages, but I’ll go with Sublime’s “40 oz. to Freedom.” I was a fan of Sublime well before I could (legally) drink, so it’ll always hold a special place in my heart.

BIOGRAPHY: Daniel Hartis is the founder of CharlotteBeer.com and the author of Charlotte Beer: A History of Brewing in the Queen City. His next book, Beer Lover’s The Carolinas, will be published by the Globe Pequot Press in January 2014. When he’s not writing about beer, he enjoys spending time with his wife and two children. You can follow him on Twitter at @CharlotteBeer.

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.

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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?

Above, you’ll find the cover of Saved By The Bell #2, published way, way back in the wonderful days of 1992. Can you believe that was 21 years ago? Why are we showing this comic book cover to you today, when we typically only depict legally themed comic book covers? Well, two years ago today, we published our interview with Mark-Paul Gosselaar and Breckin Meyer, the stars of “Franklin and Bash,” a silly lawyer show on the TNT network.  Gosselaar, of course, played Zach Morris on “Saved by the Bell.”  Apparently, “Franklin and Bash” is still airing, and its third season premieres in several weeks.  We will not be doing another interview with them, though. Alas.

Over at Law360.com, there’s an article entitled “5 Ways Law Firms Screw Up Their Blogs,” in which we are mentioned (as an example of how NOT to screw up a legal blog):

“If a blog is well-written and sufficiently targeted, it can create the perception of market leadership quickly,” said Ross Fishman, CEO of Fishman Marketing. “It can help put you on the automatic short list for certain types of legal work or industry practices.”

…

Fishman pointed to Abnormal Use, a product liability blog written by lawyers at Gallivan White & Boyd PA, as an example of a blog with strong writers who convey substantial information with a sarcastic sense of humor. Blog posts have discussed a suit stemming from an explosion at a manufacturing facility, known as “the flaming rat case,” and ruminated over the perils of dropping pop culture references at depositions.

“They don’t take themselves too seriously,” Fishman said. “They are willing to show their personality, and that’s attractive.”

If you’re feeling nostalgic, here is the “flaming rat case” post mentioned in the article, and our old post “The Perils of Making Pop Culture References at Depositions” chronicled a failed attempt to invoke Bryan Adams on the record.

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Every so often, the blog gods shine down upon their minions and grant them a post that, almost literally, writes itself.  This is one of those posts.  While perusing Yahoo! News the other day, I ran across this story.  Go ahead.  Click on the link.  You’ll be glad you did.

Was I right?  A copy of the full opinion can be found here [PDF].  It’s well worth a full reading.

I’ve often thought that being a judge might sometimes get a little dry, and that writing legal opinions (or, rather, reviewing the opinions that my clerk wrote) might become mundane.  But every once in a while, a case lends itself to a bit of creative writing.

This ruling is simply hilarious.

I was also a bit curious about its author, U.S. District Judge Fred Biery, so I looked him up.  According to his official bio on the U.S. District Court for the Western District of Texas website, Judge Biery was appointed by President Clinton [withhold additional commentary here] and he enjoys basketball and gardening.  His Wikipedia page already has a citation to this fun ruling.

Law is serious business.  No one denies that.  Further, it is possible that the town of San Antonio and the strip club at issue do not find the judge’s lighthearted opinion at all amusing.  Perhaps they feel that their litigation is not being taken as seriously as they believe it should.  But for the rest of us, this opinion proves that lawyers–and judges–are not sticks-in-the-mud all the time.  And that’s a good thing!

Above, you will find the cover of Superman #41 published way, way back in 1946.  As you can see, Superman seems to be frustrated with a case of writer’s block.  We definitely empathize with his dilemma – especially when due dates are upon us.  But, we must wonder why Superman is writing his own comic in the first place.  Talk about the opportunity to flatter one’s self.  Faster than a speeding bullet?  More powerful than a locomotive?  Able to leap tall buildings in a single bound?  Whatever you say, Superman.  It’s amazing he ever revealed the whole green Kryptonite vulnerability thing.  Alas.

Here is an interesting article from The New Yorker discussing the drawbacks of Entropica, the latest artificial intelligence system garnering tons of internet buzz.  We think the authors could have saved a lot of time and Internet space by simply reminding us of The Matrix.

According to a Gawker report, a supermarket chain in the United Kingdom has been ordered to recall bags of nuts for failing to disclose that they contain nuts.  You might recall our own Stuart Mauney discussing a similar issue some time ago.  (Hat tip:  Overlawyered).

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Here’s a tip:  When deposing a doctor, or any other witness, Google their name and see if he or she maintains an official website.  These days, almost anyone in business maintains a website.  Doctors, retained testifying experts, contractors, fact witnesses, essentially anyone you might depose, likely has one.  Accordingly, such sites can be mined for information prior to their depositions.

You’d be surprised at how much information doctors place online about themselves.  This is not the type of personal information that one might find on a social media profile like Facebook.  This is the public presentation of that person’s business identity.  Accordingly, you might find biographical information, representations of their skill sets, or information about how often they do the type of work at issue in your case. You may be learn that the doctor actively solicits patients from lawyers or hawks his services as one who treats accident victims.  If the doctor does that, such representations can be explored at the doctor’s deposition.  Further, it is unlikely that the doctor may recall the precise wording of the representations on the website and will be unprepared to answer questions about them.

Other information may also be obtained.  For example, you may learn the names of all of the staff members of a doctor’s practice, and thus be able to identify other potential witnesses.

So, for good measure, seek out the official website before your deposition. It might be worth it.

Above, you’ll find the cover of Police Line-Up #1, published way, way back in 1951.  “Crime Can’t Win,” proclaims the issue. Check out the armed guy on the cover raiding the police files. Note that this comic book is so old, and presumably rare, that the only version of its cover we could find is one defaced with ancient scribbles and doodles. We wonder if the scribbler – whose identity is inevitably lost to history – became a lawyer. Sadly, we’ll never know.

This, by the way, will be our 896th post. Can you believe that? That is a great many blog posts. We too are stunned. Have you read them all? When is the last time you read the Abnormal Use mission statement, published on January 4, 2010? In fact, when is the last time we read it?

Friend of the blog Tamara Tabo published her first column at legal mega-blog this week.  You can find it here.

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