October 2006

Electronic Evidence – Fear and Loathing in the Legal Profession

October 26, 2006

The best aspect of law school is the subordination of math. Anon ________ The schematic displayed above (click for a blow up in pdf format) is a simplified illustration of a corporate network which Microsoft provided to the Federal Rules Committee in connection with proceedings on electronic evidence. It was intended to illustrate a generic corporate computer network. If you are a lawyer and this seems like an alien concept that no lawyer should ever be required to understand, you’re not alone. Lets face it – like most stereotypes, the old joke that lawyers go to law school to avoid math and technology contains a large element of truth. So, it’s not hard to sense the anxiety emanating from the hallways of the nation’s law offices as the electronic discovery tsunami picks up speed. Yes, there’s a new technology boom, but it’s not the kind that sent clients flocking to their lawyers for legal representation in the 1990s. Many lawyers in their 50s and 60s can barely find the caps lock key on a computer keyboard, much less learn the intricacies of “IT“. Nevertheless, every day emails and brochures arrive announcing seminars and warning that the era of electronic data discovery (EDD) has finally, truly arrived. Luddite lawyers are warned that – 99% of all documents created today are in electronic form. Changes to the federal rules of civil procedure…

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Recent Cases (or, Lawyers Behaving Badly)

October 25, 2006

Don’t get me wrong, I have nothing, nothing, against leasing companies. But it seems that some people do, so it grabs my attention when a leasing company sues for breach of a lease and not only loses its case but gets hit with a counterclaim that results in a judgment for violation of M.G.L. c. 93A (the Massachusetts “unfair and deceptive acts and practices” statute). This was the outcome in General Electric Capital v. MHPG, Inc. Following default on the lease GE sued not only its lessee, MHPG, but (since MHPG was insolvent), the next best thing, the company’s stockholders and directors. After all, you’ve got to go where the money is, right? After Massachusetts Superior Court Judge Ernest B. Murphy (no stranger to controversy himself) rejected GE’s attempt to “pierce the corporate veil” he ruled that GE’s suit against the shareholders/directors was a violation of c. 93A (the Massachusetts statute prohibiting “unfair or deceptive acts or practices”). To quote: As the case progressed . . . GE learned there was no personal guaranty from either of the [directors] and that both had left MHPG almost two years prior to the default under the lease. Even after having been alerted to the absence of any personal guarantees, GE . . . vigorously prosecuted the case against [the directors]. This Court finds this continued litigation inexcusable, and well parametrized within a…

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Establishing a Technorati Profile (readers can ignore)

October 23, 2006

Technorati Profile If you’re curious, this process is explained here.

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Jury Trials In Massachusetts – "Not"

October 19, 2006

In the strange heat all litigation brings to bear on things, the very process of litigation fosters the most profound misunderstandings in the world. Renata Adler _______________ The Boston Bar Association (BBA) today issued a report entitled Report of the Boston Bar Association – Task Force on the Vanishing Jury Trial. The subtitle is “Jury Trial Trends in Massachusetts: The Need to Ensure Jury Trial Competency among Practicing Attorneys as a Result of the Vanishing Jury Trial Phenomenon.” Lawyers may be forgetting how to try cases, but they haven’t forgotten how to write. Apart from the 37 words in the title, the full report is 38 pages long. It provides convincing evidence of the long-term trend toward a decline in jury trials (in both federal and state courts), and bemoans the fact that lawyers are experiencing this legal epiphany less often than in the past. While I’m as “up” for a good old rollicking jury trial as the next guy or gal — with its enormous expense, unpredictability, risk of jury nullification, ignorance or disinterest, and stress on all concerned (mostly the clients) — I’m not sure that fewer jury trials is a “bad thing.” I would liken it to dentists bemoaning the lost opportunity to fill cavities. Darn that fluoride, flossing and better hygiene! Personally, after 27 years in this “business”, I would attribute the dearth of civil trials…

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Viral Video, YouTube and Whack-a-Mole, or Why Mark Cuban is Wrong

October 19, 2006

I quote from News.com on September 28th: Cuban, co-founder of HDNet and owner of the NBA’s Dallas Mavericks, also said YouTube would eventually be “sued into oblivion” because of copyright violations. “They are just breaking the law,” Cuban told a group of advertisers in New York. “The only reason it hasn’t been sued yet is because there is nobody with big money to sue.” * * * Cuban said “anyone who buys that (YouTube) is a moron” because of potential lawsuits from copyright violations. “There is a reason they haven’t yet gone public, they haven’t sold. It’s because they are going to be toasted,” said Cuban, who has sold start-ups to Yahoo and CompuServe. The outspoken (to put it mildly) Cuban, billionaire owner of the Dallas Mavericks and Chairman of HDTV cable network has repeated this message loudly and often, both before and after Google’s $1.6 billion purchase offer to YouTube. Many other media sources appear to have picked up the tune, and the media-giant mouthpieces have added to the volume by rattling their sabers, implying that its only a matter of time before this “mother of all lawsuits” is forthcoming. Don’t believe a word of it. Surprisingly few observers have asked the pertinent question here: do the Supreme Court’s 1995 Grokster decision and the DMCA (the Digital Millennium Copyright Act) protect YouTube from liability for copyright-protected works posted by…

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Lies, Damn Lies, and Statistics

October 19, 2006

I’ve been meaning to post some statistics reported by Price Waterhouse Coopers at the MCLE 9th Annual Intellectual Property Conference earlier this year. PWC has done a rigorous study of patent and trademark cases in the Federal District Courts and at the Court of Appeals for the Federal Circuit (CAFC) over the last 25 years. A few highlights and trends: In 2005, 4% of patent cases and 1.5% of trademark cases went through trial. (Presumably the balance were resolved via settlement or summary judgment). Juries award more damages in patent cases than bench trials. On the other hand, bench trials are more popular in trademark cases. The CAFC is a tough court: only 30% of damage awards are affirmed by the CAFC. Patent damage awards far exceed trademark damage awards. Patent awards’ fastest growth has been in the computer business services and electronics components sectors. Reasonable royalties (rather than lost profits) has become the most frequent measure of damages awarded in patent cases. (This may reflect the fact that more plaintiffs are nonpracticing inventors (sometimes referred to as “patent trolls“).

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Project Posner

October 13, 2006

Tim Wu and Stuart Sierra, a Columbia Law School professor and web designer respectively, have launched Project Posner, a web site offering unheard of access to Judge Richard A. Posner‘s legal opinions, in searchable format. And yes, the creators — who are certainly not alone in this view — pronounce that “Richard Posner is probably the greatest living American jurist.” If, however, you still find yourself wondering: why should I care?, Project Posner has you covered. Project Posner offers the following explanation for its existence: … While Posner’s books and popular writings are easily available to the public, his opinions are difficult or expensive for the public to access, let alone search. This site, for the first time, collects almost all of his opinions in a single searchable and easily readable database. For lawyers and those interested in law, Posner’s opinions have a particular substantive value. One thing that distinguishes the opinions is the effort to try and get at why a given law actually exists, and an effort to try and make sense of the law. That can make them more useful than most case reports. In addition, the opinions often develop the American general and state common law. Posner is among the judges who feels free to take the rule of Erie as more suggestion than injunction. Finally, some of the opinions are funny. If you’re still not…

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Old Lawyers Never Die, They Just Lose Their Appeal

October 12, 2006

We repeat this bumper sticker joke meaning no disrespect for U.S. District Court Judge Robert E. Keeton, who has retired at age 86 after 27 years on the federal bench. His retirement was effective September 8, 2006. You can find a link to the official announcement here. Since being appointed to the bench in 1979, Judge Keeton presided over a number of significant cases, including a groundbreaking software copyright case involving Lotus 1-2-3 and the prosecution of political activist Lyndon LaRouche for conspiracy, mail fraud and tax evasion. He was also the trial judge who set aside the perjury conviction of Boston Police Officer Kenneth Conley – a decision that was upheld by the Federal Court of Appeals. Judge Keeton, a Harvard law professor, wrote extensively on various legal topics and was influential in the creation and adoption of the federal civil and criminal rules of procedure. At age 86, Judge Keeton was the oldest member of the federal court in Massachusetts. Since 2003, he was a “senior” judge, meaning that he continued to take on cases but no longer worked on a full-time basis. Of course, as we noted recently, some federal judges are only warming up at this age.

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Recent Cases (copyright, trade secrets)

October 12, 2006

In Cambridge Literary Properties, Inc. v. W. Goebel Porzellanfabrik Magistrate Judith Dein issued an extensive Report and Recommendation (adopted by Judge Nancy Gertner) on issues relating to the statute of limitations as a bar to a claim of copyright infringement. The case involves facts going back as far as 1931 which involved the drawings of Berta Hummel, and is a valuable primer on the defense of statute of limitations in copyright actions. District court Judge Gorton has issued a decision in Echomail, Inc. v. American Express denying IBM’s (a co-defendant) motion to dismiss claims of trade secret misappropriation, unfair competition and violation of M.G.L. c. 93A. In T-Peg, Inc. v. Vermont Timber Works, Inc. the First Circuit applied the Architectural Works Copyright Protection Act for the first time in this circuit. Reversing summary judgment for the defendant and remanding for trial, the court not only recapped the legal standard for substantial similarity (the test by which infringement is judged under copyright law), but clarified its position on expert testimony in copyright cases, making clear that there is no per se rule against expert testimony, and that whether or not it is appropriate depends on the complexity of the subject matter at issue.

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Larry Reece

October 4, 2006

Laurence H. Reece, III, was a partner at our firm for two years at the end of the 1990s. Following that, he started his own firm in 2000. Larry died of cancer in August 2004. Larry was the “Dean of the Bar” in Massachusetts when it came to the law of trade secrets and covenants not to compete. He was a nationally recognized expert in these practice areas and a prolific author, writing seminal articles on these topics. Life moves on, and out of concern that these articles would turn to dust on the bookshelves and in the libraries of Massachusetts attorneys, I asked Larry’s wife, Patricia Manson, for permission to publish some of Larry’s best articles on this blog. She agreed enthusiastically. While the copyrights to these articles belong to the publishers, I believe that this nonprofit, educational publication falls well within fair use. (Warning: these are lengthy PDF files). Trade Secret Misappropriation: A Review and Analysis of Massachusetts Law, published in 71 Massachusetts Law Review 171 (December 1986). This was, and remains, the seminal article on trade secret law in Massachusetts. Employee Non-Competition Agreements and Related Restricted Covenants: A Review and Analysis of Massachusetts Law, published in the March 1991 issue of the Massachusetts Law Review. This is the counterpart to the 1986 article. Noncompetition Agreements: An Overview of Massachusetts Law, published by MCLE in 1998. An update…

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When It Comes To Long-Arm Jurisdiction, Unpredictability Rules

October 4, 2006

Lawyers know that one of the most unpredictable decisions a Superior Court judge can make involves long-arm jurisdiction – that is, whether the defendant has enough “contacts” with the state to be sued here. (For an article by the author discussing the state long-arm statute in depth, click here). Two recent decisions illustrate this point. In Saint-Gobain Ceramics v. Happy Hewes Judge Bruce Henry ruled that there was no personal jurisdiction over Hewes, who lived in Illinois, despite the fact that Hewes had been an employee of Saint-Gobain, engaged in phone calls with Saint-Gobain in Massachusetts, had made multiple visits to Massachusetts on company business and had received paychecks from Saint-Gobain’s facility in the state. Most lawyers would tell you that this was more than enough to establish personal jurisdiction, but Judge Henry disagreed, noting that “whatever Hewes did during the unspecified number of contacts with Massachusetts was at his employer’s behest and not for his own purposes.” This line of reasoning has little basis in Massachusetts law that I’m aware of, but it persuaded Judge Henry, who dismissed the case against Happy Hewes, leaving Saint-Gobain to pursue him in Illinois. On the other hand, in Deutch Williams v. Naturopathic Laboratories Int’l a Massachusetts law firm sued its former client for attorney’s fees. Even though the former client had no operations in Massachusetts and had never visited here in connection…

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Fremont-Smith and Zobel Recalled to Superior Court Bench

October 3, 2006

Courts. Although Allan van Gestel’s recall to the Suffolk County Business Litigation Session received moderate publicity last year, both Thayer Fremont-Smith (bio) and Hiller Zobel’s recall this year has received almost no attention at all. If these recalls were reported by Mass Lawyers Weekly, I can’t find it. Both judges are sitting in Middlesex for now.

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