Baglow v Smith: The Sting of the Libel

Thu, 22 Mar 2012 13:27:16 GMT

Sometimes, some seemingly juvenile cases can lead to significant clarifications on areas of the law that have not kept up with our rapidly evolving world. Baglow v Smith, currently before the Ontario Court of Appeal is a prime example of one such case. The Tale of Two Blogs In Canada’s increasingly partisan and divided political [...]

The Tale of Two Blogs

In Canada’s increasingly partisan and divided political climate, Dawg’s Blawg and FreeDominion are a gauge of the current temperature.

Written by Roger Smith of Burnaby, British Columbia, FreeDominion claims to be “The Voice of Principled Conservatism.” Conversely, Dawg’s Blawg, written by John Baglow of Ottawa, Ontario, is a well-known progressive and left-leaning blog.

During three days in August 2010, an exchange took place between the parties (“Dr. Dawg”, “Peter O’Donnell”, “Ms. Mew” and other aliases used by each party to mask their online identities while posting their comments).

At issue are comments made on the FreeDominion website calling the plaintiff, Mr. Baglow, “one of the Taliban’s more vocal supporters.” These comments focused on Mr. Baglow’s Dawg’s Blawg posts, in which he argued that Omar Khadr was being tried contrary to international law and voiced opposition to Canada’s military engagement in Afghanistan.

Based on these comments, Mr. Baglow has launched a claim for defamation against three posters of FreeDominion. Mr. Baglow claims the comments result in a reasonable likelihood of damage to his reputation.

Blogging: The Modern Live Debate

The defendants then counter-claimed in the Ontario Superior Court of Justice for a summary judgment dismissing the claim in 2011.

Justice Annis ruling on the defendants’ request focuses on two issues: (1) whether the defendants establish there is no issue for trial and (2) whether the defence of fair comment applies.

On the first issue, Justice Annis, must determine if the comment is presented, in its “pith and substance”, as opinion or fact. While a low threshold exists for a traditional defamation claim to proceed, Justice Annis is required to determine if blogs are different. And in his opinion, they are.

Justice Annis rules the entire publication must be analyzed rather than the isolated comment itself. Justice Annis concludes that the defendants’ comment is about the impact of Mr. Baglow’s views, citing Justice Lebel’s dissent in WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420, in the context of an Internet blog. Thus, the comment is an opinion rather than a statement of fact.

On the topic of Internet blogging and defamation itself, Justice Annis provides some interesting insight into how courts should view the topic.

Justice Annis declares, “Internet blogging is a form of public conversation.” Justice Annis distinguishes blogging from other forms of published defamatory statements because of its “back and forth character.”

This character of blogging gives parties an opportunity to respond to disparaging comments in a quick manner before the same audience. Justice Annis holds blogging to essentially be the modern written equivalent of a live debate.

And while Justice Annis says defamation can still occur in such forums, the “sting of the libel” is diminished by the immediate capacity to respond.

Justice Annis then holds, in assessing allegedly defamatory words in an ongoing debate, the context that will be determined

from the perspective of the reasonable reader or listener is one that anticipates a rejoinder, which would eliminate the possible consequence of a statement lowering the reputation of the plaintiff in their eyes.

In Justice Annis view, the plaintiff brought this action in “mid-debate” and before seeking to refute the allegedly defamatory statement when provided the opportunity. Justice Annis writes that in such instances a claim cannot proceed.

However, Justice Annis does leave the door open to claims in some instances where “the statement is wholly outside the scope of the debate or otherwise so outrageous as to prevent meaningful argument from continuing.” However, one commentator points out that the scenario described by Justice Annis could be distinguished from defamation claims where the plaintiff does not participate.

Therefore Justice Annis finds that the comments are incapable of conveying a defamatory meaning, meaning Mr. Baglow’s claim cannot proceed.

Fair Comment

But, the debate is not over yet. Justice Annis goes on to explore the issue of fair comment. Chief Justice McLachlin’s four-point test of the fair comment defence from Grant v Torstar Corp., [2009] 3 S.C.R. 640, as described in WIC Radio, is called upon:

(a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognizable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.

Justice Annis rules that only on the last step can Mr. Baglow succeed.

And for that determination, Justice Annis calls on Justice Ker’s declaration in McVeigh v Boeriu, [2011] B.C.J. No. 554. Justice Ker elaborates on another four-point test to determine express malice.

Those four points refer to statement made by a person knowing it to be false; or made with reckless indifference as to whether it is true or false; or made for the dominant purpose of injuring the plaintiff because of spite or animosity; or made for some other dominant purpose which is improper or indirect, or also, if the occasion is privileged, for a dominant purpose not related to the occasion.

Justice Annis fails to find Mr. Baglow’s basis for these latter two point given that his own affidavit mentions the defendants are political adversaries with whom he has no personal connections.

Therefore Justice Annis rules in favour of the defendants, dismissing Mr. Baglow’s action and awarding them costs. However, about two months later Justice Annis further clarifies his decision.

With Costs But…

Justice Annis uses the Baglow v Smith, 2011 ONSC 6382, decision on costs to further clarify his reasons, given that libel in the Internet blogosphere is a novel area of law.

Justice Annis clarifies it is in the ambiguous nature of the term “supporter” that the claim fails. Justice Annis further notes that the “public conversation” character of blogging is simply an additional, though not determinative, contextual factor.

Furthermore, Justice Annis affirms Mr. Baglow’s position that “defamation on Internet blogs constitutes a novel issue of some public importance.” In what some believe is a step back from a previously more hardened position, Justice Annis reduces the costs awarded to the defendants by 50 per cent.

Court of Appeal Walks A Thin Line

This brings us to Mr. Baglow’s current appeal of Justice Annis’ decision before the Ontario Court of Appeal. (Mr. Baglow is even posting about it on his blog.)

Arguments for the case took place on March 13. No doubt the outcome will further clarify defamation laws in Canada, especially as they relate to the blogosphere.

The Court of Appeal’s decision will inevitably have a significant impact at a time where our political discourse becomes increasingly uncivil.

While the impugned comments (and other comments on both sides) have extremely poor taste, should it fall to our Canadian courts to civilize our political discourse?

The foundation of our democracy depends upon an enlightened political debate, the capacity to listen to diverse viewpoints, and our willingness to adjust our positions based on the knowledge we gain from those debates.

The Court of Appeal’s decision will inevitably have a big impact upon these political debates in our new age of social media. But this puts our courts in the difficult position of walking a very thin line. Hopefully the ensuing decision will not further encourage belligerent parties to sink into this downward spiral of incivility nor have a chilling effect on passionate debates on controversial issues.

Justice Annis, though sometimes diverging on tangents unrelated to the legal issues in this case, captures the essence of this “debate” between the two sides:

We are left with both sides simply advancing what they mean by supporting the Taliban. Tactically they wish to focus attention and anchor debate around their position and not the opponent’s which would require them to truly debate whether the ends can justify the means.

The lesson we can learn from this case is that we shouldn’t have to resort to courts to humanize our political discourse; that onus falls upon us as Canadian citizens.

Please take Grits reader survey

shenson@austin.rr.com (Scott Henson) — Wed, 14 Mar 2012 18:04:23 GMT

Grits is considering a number of possible changes to the blog about which I'd like readers' input, so I sent out a note today to Grits email subscribers asking them to fill out a short reader survey, and thought I'd post the request here as well:

Dear Grits reader,

First, thank you for subscribing to Grits for Breakfast, and I hope you find the content useful. Please take a moment to fill out this reader survey in order to help me make the blog even more useful and interesting to you.

With the justice system ballooning and the number of mainstream reporters declining, there's more and more ground to cover on the issue areas Grits writes about, and fewer people than ever devoted to the task. Key agency boards and legislative committees too often meet in virtual secrecy, as far as the public is concerned, simply because no one shows up to report what they are doing.

I am considering taking this hobby to the next level by devoting myself to performing more actual, ground-level journalism on Grits for Breakfast (as opposed to mainly commenting on stories written by others). But before proceeding, I need to better understand your needs, and whether you would support expanded coverage in key areas. The additional time and expense might even require a paid subscription to access premium, original content, so I want to move carefully and with plenty of input from you.

To that end, it would help me tremendously if you could take a couple of minutes to fill out this brief reader poll to help me decide whether this idea makes sense.

With gratitude,

Scott Henson
Grits for Breakfast

The idea would be to continue to have link-and-comment type posts on the public part of the blog but to begin featuring more original, in-depth content behind a paywall. Take the survey and let me know what you think of the idea.

Still No Cure for the Malady of Jurors' Social Media Use During Trials and Deliberations

mzazzali-hogan@gibbonslaw.com (Mara E. Zazzali-Hogan) — Fri, 24 Feb 2012 14:14:25 GMT

Having recognized the challenges regarding jurors’ use of social media in the courtroom, the Committee on Court Administration and Case Management requested that the Federal Judicial Center (“FJC”) survey district court judges to identify effective mechanisms to curtail this growing problem. In response, the FJC queried 952 district judges and issued Jurors’ Use of Media During Trials and Deliberations, which demonstrates that despite the various strategies devised, it is virtually impossible to prevent jurors’ use of social media and is equally difficult to detect each and every impropriety. This issue is not novel; in fact, this blog has previously reported on instances where jurors’ use of social media had a significant impact on a proceeding as well as suggestions on how to avoid such pitfalls. Click here for those postings.

The General Response

Of the 508 judges who responded to the electronic questionnaire at issue, only 30 judges or 6% reported detecting jurors’ use of social media. This discovery occurred more often during trials rather than deliberations and in criminal trials than civil trials. The social media at issue in these instances were Facebook, Google, instant messaging (“IM”) services, Twitter, Internet chat rooms, Internet bulletin boards, and MySpace.

Nature of the Use

Among the jurists who identified how jurors used social media during trial and deliberations, the most common was through jurors’ “friending” or attempting to “friend” participants in the case (meaning witnesses, parties, attorneys or judges) as well as communicating or attempting to communicate directly with participants. In addition, the judges discovered that jurors used social media to reveal parts of the deliberative process; provide information about other jurors; conduct research; generally share information about the case by, for example, revealing the likely verdict; allow someone else to hear live testimony; and conduct personal business.

Challenges with and Consequences of Detection

Of the 28 judges who indicated how they learned of a juror’s improper use of social media, the most common sources of that discovery were fellow jurors, attorneys or information learned in post-trial motions or interviews. Judges also learned of the malfeasance through court personnel or a party. Most notable is the fact that in only two instances did judges report personally observing jurors utilizing electronic devices in the courtroom. Upon learning of such improprieties, those judges have removed the juror, cautioned the juror about removal, declared a mistrial, held the juror in contempt, fined the juror, questioned the juror and/or held a hearing to determine the scope and nature of information shared.

Strategies for Preventing Jurors’ Use of Social Media Solutions

Fortunately, the majority of the judges who responded to the questionnaire have taken measures to prevent jurors from using social media during trial and/or deliberations, though surprisingly, 30 judges (6%) admitted not specifically addressing the issue with jurors. To prevent use of this media, judges have employed model jury instructions; reminded jurors during voir dire and through various points in the trial of the prohibition and the rationale behind it; confiscated phones and electronic devices during deliberation and/or at the start of each day of trial; articulated potential consequences of disobeying instructions; and/or required jurors to sign a certifications or statements promising not to use social media while serving on a jury or that they adhered to the instructions.

How do we know what, if any of those procedures are effective? The answer is we don’t. As conceded by almost half the jurists who responded to questions about preventive measures and whether they were effective, they simply do not know whether the steps taken were successful. In the meantime, while recognizing there is no panacea, judges, attorneys and fellow jurors must police the use of social media by jurors during trials and deliberations.

Mara E. Zazzali-Hogan is a Director on the Gibbons E-Discovery Task Force.

UPDATE: Whose Account Is It Still?

ppengelley@cozen.com (Pamela Pengelley) — Tue, 21 Feb 2012 19:38:04 GMT

The following article was first published by our colleague Michael Schmidt on his blog, Social Media Employment Law Blog. It is part of our continuing effort to keep Cyberinquirer readers on top of decisions relevant to Social Media in the context of litigation. Thanks for the reprint, Mike. Two weeks ago, I discussed the California [...]

Two weeks ago, I discussed the California case of PhoneDog v. Kravitz, where an employee, who used a company Twitter account as part of his job duties, left the company and continued to use the same Twitter account and tweet to the same followers. The (former) employee claimed that he had the right to continue tweeting, and PhoneDog responded that he was barking up the wrong tree (best I could do at the moment). As I mentioned in my last post, the court had denied the employee’s attempt to dismiss the entire case at inception, and allowed the company to amend its complaint to provide more specificity on some of its claims. Time for an update.

Since that decision, PhoneDog amended its complaint to re-allege claims for intentional interference with prospective economic advantage and negligent interference with prospective economic advantage. Then, the employee filed another request to dismiss those two claims, demonstrating that he was up for a dog fight (I’m trying). Three days ago, on January 30th, the court again denied the employee’s dismissal request, ruling that the company had now sufficiently clarified – at least for pleading purposes – how it did have economic relations with the 17,000 followers of the Twitter account, and how those relations were disrupted by the employee’s post-resignation conduct. The impact of that ruling is that PhoneDog can now proceed with the case, and the significant time and money that the employee will be forced to spend responding to requests for information and documents, and appearing at depositions.

Employer Take Away: What should you as an employer take away from this development?

In the dog-eat-dog world of competition between companies and their employees (I’m gaining some momentum here), the outcome of this case may provide our first definitive guidance on the questions of how we should define a “trade secret” when it comes to social media, and the extent to which social media forums and networks belong to the employer or the employee. In the meantime, those issues can be addressed to a large extent by having your employees sign appropriate agreements that define these ownership issues.

We will continue to monitor the PhoneDog case for you, and update you on any significant developments. Until then (I’m ready for a big finish)… We may not learn much before the dog days of summer, but it may just be that, in the end, the former employee can’t be running with both hounds and hares when it comes to being provided access to a Twitter audience by his employer and then trying to keep that audience when he leaves.

Access to Insured’s Social Media Accounts: No Friend Request Necessary

ppengelley@cozen.com (Pamela Pengelley) — Tue, 07 Feb 2012 01:46:52 GMT

The following article, written by my colleague Nicole Moody, first appeared in the Chicago Daily Law Bulletin. Thanks to Nicole for allowing us to republish it here. Rick Bortnick Many of us have been there. Sipping our morning coffee, signing into our Facebook accounts, waiting to see what notifications will greet us. We are intrigued [...]

The following article, written by my colleague Nicole Moody, first appeared in the Chicago Daily Law Bulletin. Thanks to Nicole for allowing us to republish it here.

Rick Bortnick

Many of us have been there. Sipping our morning coffee, signing into our Facebook accounts, waiting to see what notifications will greet us. We are intrigued to see that we have a friend request. Who could it be? An acquaintance from the past? A new colleague who we met at work? Whoever it is, we know that by accepting the request we will be granted access into this individual’s life and will know more about them in five minutes than we would know in a lifetime of small talk.

Due to the use of usernames and passwords, there is a belief that information shared on Facebook is confidential unless publicly shared. However, courts around the country are now addressing just how private this information really is.

In cases nationwide, litigants are asking courts to grant unfettered access to other parties’ Facebook or other social media accounts. Inevitably, in the age of status updates and hashtags, poking and friending, the lines between public and private information have become blurred. This trend has become increasingly prevalent in the insurance industry as insurance companies have realized the usefulness of social media in litigation.

Not surprisingly, in coverage litigation, insurance companies are requesting access to information contained in their insured’s social media accounts, such as Facebook. Currently, courts are divided as to whether insurers or other involved entities are entitled to non-public portions of the social media account, requiring disclosure of usernames and passwords. As the cases suggest below, whether an insurer or other entity may view privately-held information depends on whether the publicly-shared information provides a factual predicate for further discovery into the insured’s social media account.

Several cases have upheld an insurer’s right to subpoena its insured’s Facebook or other social media account in coverage litigation. In Beye v. Horizon Blue Cross Blue Shield of New Jersey, the plaintiffs, parents of children who allegedly suffer from anorexia or bulimia, sued their health insurer for denying claims for benefits for their children. The plaintiffs asked the court to reconsider ordering them to produce information contained on their children’s social media accounts. While declining to vacate its order, the court modified the information that must be disclosed. To alleviate privacy concerns, the court required only production of the entries made on Facebook or MySpace that the beneficiaries shared with others. The court explained that “[t]he privacy concerns are far less where the beneficiary herself chose to disclose the information.”

A recent New York Supreme Court case demonstrates both the impact that information posted on Facebook has on an insurer’s coverage analysis as well as the Court’s hesitation to provide unfettered access into a personal Facebook account. The insured sought underinsured motorist benefits after he allegedly suffered personal injuries as a result of a car accident. The insured claimed that “he was unable to work, had difficulty walking, and was unable to lift heavy objects, run, ski, dance, or walk up stairs.” The insurance company argued that no coverage existed as the insured breached its contract by misrepresenting material facts in violation of the insurance policy. In support of its argument, the insurer pointed to pictures of the insured posted on “publicly available portions” of his Facebook account. These photographs depicted the insured participating in numerous activities, including standing on top of a pool slide, climbing the pool’s ladder, and bending over a boat trailer. Several of the photographs were included in an album entitled, “Another day of play . . . . I gotta get a job.”

In light of this information, the insurer sought additional discovery and an order compelling the insured to provide unlimited access to his Facebook account. The Court held that additional discovery, including unlimited access to the insured’s Facebook account, was unwarranted at that time. The Court found that this discovery request was overly broad and that there was no showing that the material sought was necessary and not cumulative. Significantly, however, the Court left the door open to a narrower discovery request for such information.

Due to Facebook’s global presence, the issue concerning discoverability of information contained on Facebook is not only a concern in the United States. In 2009, a Canadian woman’s disability benefits were discontinued after the insurance company found pictures of her seemingly having a good time on vacation. She had been on leave from her job and receiving disability benefits for severe depression. While the insurance company claimed that the Facebook pictures were only a “piece of the puzzle,” they undoubtedly played a significant role in the insurance company’s decision to discontinue her disability benefits.

Discoverability of social media information is not only of interest to an insurer in coverage litigation, but is also significant for insurers who are providing a defense for their insureds in litigation. In Zimmerman v. Weis Markets, Inc., a Pennsylvania court was not deterred by privacy concerns when it compelled access to social media accounts. The plaintiff sued the defendant after he allegedly suffered injuries while operating a forklift at the defendant’s warehouse. The court ordered the plaintiff to disclose his username and passwords for any and all MySpace or Facebook accounts to the defendant.

Accordingly, the court permitted discovery into the non-public portions of the plaintiff’s Facebook and MySpace accounts to determine whether the insured suffered the physical injuries claimed in his complaint. The court reasoned that “Facebook’s privacy policy explains that users post any content on the site at their own risk and informs users that this information may become publicly available.” At the same time, the court clarified that it did not support “a carte blanche entitlement to Facebook and MySpace” as part of discovery requests. Rather, the court noted that review of the publicly available information warranted further discovery into the privately-held information.

In both coverage litigation against the insured and defending the insured in underlying litigation, discoverability of information contained in social media accounts is significant in assessing liability and preparing litigation strategy. As these cases illustrate, in addition to publicly-available information, access to an insured’s privately-held information in its social media account may be compelled, especially if the discovery request is properly supported by facts casting doubt on the genuineness of the insured’s representations. In today’s world, it seems as though the information previously only attainable by an accepted “friend request” can just as likely be attained by a “discovery request.”

2nd Annual Community Court Conference, Washington DC

Mon, 06 Feb 2012 21:14:12 GMT

Excerpts from Center for Court Innovation Executive Director, Greg Berman's blog.

"Report from DC
A quick report from the first two days of Community Justice 2012 in Washington DC, where representatives from 7 countries and 75 different jurisdictions have come together to share their wisdom with one another and learn from experts in the field:The capacity crowd of approximately 300 participants includes a good mix of newcomers and old friends. I was particularly gratified to see a good contingent of Center for Court Innovation alums on hand -- people like Derek Miodownik and Juli Ana Grant and Kate Krontiris who have gone on to greater glory but still have managed to stay involved with the world of court reform"

Click here to read the full article

Whose Account Is It Anyway?

ppengelley@cozen.com (Pamela Pengelley) — Sat, 28 Jan 2012 16:53:21 GMT

The following article was first published by our colleague Michael Schmidt on his blog, Social Media Employment Law Blog. It is part of our continuing effort to keep Cyberinquirer readers on top of decisions relevant to Social Media in the context of litigation. Thanks for the reprint, Mike.

What would you do if your employee continued to use your company’s Twitter account after he stopped working for you?

What if your (former) employee claimed that he, not your company, actually owned the rights to the Twitter followers?

Ever thought about it?

I have posted several times about how social media has not created new causes of action, but rather has provided a new application for traditional claims. One of the areas that I surmised would develop in time was the interplay between social media and post-employment competition and trade secret rights. According to two new decisions, that time has apparently come.

In PhoneDog v. Kravitz (Northern District of California), the company gave its employee (Kravitz) use of a Twitter account as part of his employment. Kravitz tweeted information to promote the company’s services, and generated approximately 17,000 followers. Kravitz left the company, and, while he changed the account “handle”, he continued to use the same account to tweet to the same followers. PhoneDog sued Kravitz for continuing to use the Twitter account, claiming that the “compilation of subscribers and the password used to access the account” constituted company trade secrets. Valuing each of the 17,000 followers at $2.50, the company sought damages of $340,000 for “stealing” each of those followers for 8 months.

The court denied Kravitz’s request for immediate dismissal of the entire case, finding that the complaint sufficiently alleged (for initial, liberal allegation purposes) a trade secret/misappropriation claim, and, thus, that the parties would have to further develop their positions through discovery. The court also refused to dismiss the company’s claim that the Twitter account (and not just the “handle”) constituted company property and should have been surrendered at termination.

Similar issues were raised in Eagle v. Edcomm, Inc. (Eastern District of Pennsylvania), though this time involving LinkedIn. Dr. Eagle had a Ph.D in communication and psychology, and co-founded Edcomm, Inc. to provide financial and related training services. Eagle established a LinkedIn account (with the assistance of company administration, who knew the password), which she used in part to promote the company’s services, as well as to develop her professional reputation and network. After the company was purchased by a third party, Eagle and others were terminated, and the company later changed Eagle’s password and her account profile to display the name and photo of the company’s new chief executive officer.

Eagle sued the company, alleging violations of the Computer Fraud and Abuse Act, and identity misappropriation/theft. The company asserted a counterclaim, arguing that the LinkedIn account was created using the company’s e-mail addresses and substantive templates to provide certain information, which rendered the accounts company property. In its decision on Eagle’s request for the immediate dismissal of the counterclaim, the court ruled that certain company claims could advance. Of note, the court found that the company is entitled to develop through discovery that it was its own staff that “developed the [LinkedIn] accounts and maintained the connections, which are the route through which” the company has its relationships with client contacts to provide services. In the end, as with the PhoneDog case, the court was not willing to make a determination as to ownership of the social media account at the early stages of the case.

What should an employer take away from this development?

There are a few issues that were not addressed by both of these inception-stage decisions, including the extent to which the account’s user agreements should play a role in determining appropriate expectations and true ownership rights between employer and employee. Nevertheless, your company should consider creating policies and agreements that address, not only the substance of what is posted or done through social media, but also the important ownership and access issues that may arise during, and particularly after, an employee’s employment. That is especially true for any employees whose job duties include engaging in social media activities on behalf of your company.

Be Careful What You Read

vlhlawoff@aol.com (Virginia Hunt) — Fri, 13 Jan 2012 20:38:29 GMT

The problem with the Internet articles I see on many sites that look like they provide good information for injured workers is that the content is not specific to Nevada workers' compensation law. Each state has its own laws that determine work comp benefits. If information is not specific to Nevada law, then injured workers in Nevada will be misinformed. Injured workers may think that they are getting state-specific information just because they click on a particular state. However, despite the professional appearance of these websites, they rarely provide timely information on Nevada laws and claims practices.

When you are surfing the web, check whether the article or blog post is authored by a Nevada lawyer. Many companies that market search engine optimization for law firms sell canned articles that lawyers can post as their own on their websites, blogs, or twitter accounts. The ethics of an attorney doing this is questioned by Kevin O'Keefe, founder of the Lexblog company that provides a publishing platform for my law blog. Lexblog has never tried to sell me blog posts written by their company marketing agents. What Internet marketing agent is going to know more about Nevada workers' compensation law than I do? Be careful that what you are reading on the Internet is from a reputable Nevada attorney .

Be Careful What You Read

vlhlawoff@aol.com (Virginia Hunt) — Fri, 13 Jan 2012 20:38:29 GMT

Pardon the Legal Technology Interruption 2011

Wed, 04 Jan 2012 16:29:37 GMT

What kind of year was 2011 for legal tech? What were the big developments and trends that you need to know? In this episode, Dennis Kennedy and Tom Mighell pay tribute to ESPN's "Pardon the Interruption" and adopt its format for a fast-paced and fun discussion of what transpired in legal technology in 2011. After you listen, be sure to check out Tom & Dennis’ co-blog and book by the same name, The Lawyers Guide to Collaboration Tools and Technologies.What kind of year was 2011 for legal tech? What were the big developments and trends that you need to know? In this episode, Dennis Kennedy and Tom Mighell pay tribute to ESPN's "Pardon the Interruption" and adopt its format for a fast-paced and fun discussion of what transpired in legal technology in 2011. After you listen, be sure to check out Tom & Dennis’ co-blog and book by the same name, The Lawyers Guide to Collaboration Tools and Technologies.

Zuckerberg's Law of Social Sharing - Are You Taking Advantage?

Wed, 04 Jan 2012 14:22:00 GMT

Hope all of our readers had a wonderful holiday season. Over the New Year weekend, had occasion to read an interesting article in MIT's Technology Review concerning the "law of social sharing." Apparently propounded by Facebook's Mark Zuckerberg, the law...

Hope all of our readers had a wonderful holiday season. Over the New Year weekend, had occasion to read an interesting article in MIT's Technology Review concerning the "law of social sharing." Apparently propounded by Facebook's Mark Zuckerberg, the law predicts that "every year, for the foreseeable future, the amount of information you share on the Web will double." Those familiar with the history of computing will undoubtedly catch the allusion to "Moore's Law" conceived of by Gordon Moore, a founder of Intel, who famously predicted that, every two years, the number of transistors that can be fitted onto a chip of any given area, for the same price, will double. No one ever accused Mark Zuckerberg of lacking ambition.

The Web is rapidly being reshaped and redefined by social sharing of content, and Facebook has certainly facilitated that trend with its ubiquitous "Like" buttons, and new technology that allows apps and Web sites to automatically share your activity via Facebook as you browse. Internet titans such as Google and Salesforce.com have jumped on the bandwagon with social sharing features being added to their own applications.

Of course, as the article points out, the exponential growth of social sharing cannot continue forever - people have only a limited number of hours today to devote to social sharing, and will naturally filter out the more inane updates, and focus on those most important to them.

Still, for legal marketers, Zuckerberg's Law merits consideration - does your firm's website, and its blogs and email newsletters, include a social sharing tool? It can be as simple as incorporating an "Add This" icon. If not, that's definitely a feature to add in 2012. To be sure, most people won't care about your latest alert concerning, say, a new IRS regulation addressing some arcane international tax issue. But for the few clients who do, you'd be well advised to give them access to tools that let them share that and other firm content with their like-minded peers.

Click here to read the full MIT article.

Cyberinquirer Named As One of LexisNexis’s Top Insurance Blogs of 2011

ppengelley@cozen.com (Pamela Pengelley) — Sun, 20 Nov 2011 22:49:54 GMT

With the help of our readers, Cyberinquirer has again been named as one of LexisNexis’s Top Insurance blogs 0f 2011. We are obviously flattered, particularly in view of the quality of the other blogs selected to this august list. It shows that people are reading what we have to say. And that, perhaps, they are interested in what we have to say. We sure hope that to be the case. We love thinking, reading and talking about tech, privacy and cyber related issues (yeah, admittedly we’re geeks). And we hope that you, our readers, gain from our insights, even if you don’t always agree with them.

So now that we’ve been recognized by LexisNexis for the second straight period, maybe some of you, our readers, will be more comfortable authoring a piece we can post. Remember, this blog is open to all relevant, responsible submissions, be they articles, commentaries, or just comments on something we have said that strikes a chord. If you’ve got something to say that may be of interest to others in the community, email it to me at rbortnick@cozen.com and I will get back with you promptly. We strive to publish fresh, interesting content on a regular basis, but its not always easy, as we do maintain law practices. And have other commitments. So flip your authored pieces. We’d actually appreciate it.

Needless to say, we couldn’t have done this on our own. So the honor is not just for us, but for you too. Thanks.

Congratulations to Raymond Burke of Ober Kaler on Being Cited as an Authority by the Maryland Court of Appeals

Mon, 07 Nov 2011 11:00:00 GMT

Congratulations to Maryland condo lawyer, Raymond Burke, a partner at client Ober Kaler, who was recently cited as an authority on Maryland condominium law by the Maryland Court of Appeals in its recent decision, MRA Property Management, Inc., et al. v. Armstrong, No. 93, Sept. Term 2007 (filed on October 25, 2011), holding that (i) the resale certificate disclosure rules in the Maryland Consumer Protection Act apply to purchases of condominium units, and thus (ii) where a council of unit owners and its property management company violate the resale certificate disclosure obligations imposed by Md. Real. Prop. Code Ann. Sec. 11-135, “they engage in unfair and deceptive trade practices ‘in the sale of consumer realty.’”

The court cited to Ray's publication entitled Developing and Managing Condominium and Homeowners’ Associations, National Business Institute (2007) (co-authored with Kathleen M. Elmore and Cynthia Hitt Kent), in which he wrote:

”Md. Com. Law Code Ann. Sec. 13-408(a) establishes a private cause of action for damages sustained as a result of an act prohibited by the Consumer Protection Act. The Act is specifically applicable to ‘consumer realty,’ and, accordingly, representations made in connection with the sale of real property may constitute unfair and deceptive trade practices where they are misleading.”

News Brief: A busy week...

bolch@supanet.com (John Bolch) — Fri, 21 Oct 2011 12:06:45 GMT

It's been a fairly busy week in family law. Here are some of the highlights:

Firstly, congratulations to the winners of the inaugural Family Law Awards, which took place on Tuesday evening. An account of the evening can be found here, and photos of all the winners can be found here.

Moving on, Community Care reported on Tuesday that the final report of the Family Justice Review is expected to recommend that family court judges should have their powers of scrutiny limited to core decisions, such as whether to take a child into care, kinship arrangements and permanency planning, and that they should not have the power to scrutinise the detail of a council's care plan. The information was given to the National Children and Adult Services Conference by John Coughlan, director of children's services for Hampshire Council and a member of the review panel, who said that it would cut systemic delay and improve trust between courts and local authorities.

The Telegraph today reports that Education secretary Michael Gove is adding his voice to the adoption debate by urging local authorities to "intervene more vigorously" in child protection, to help speed up the adoption process. He apparently "warned that children were spending too long in care or with dysfunctional families when they could be adopted or fostered", and is quite clear where the blame lays:

"At fault is primarily a justice and a family justice system which does not prioritise the needs of the child and takes forever to make critical decisions which matter hugely in ensuring the child is found the right home."

I'm sorry? A justice system that does not prioritise the needs of the child? Does he actually know anything about the family justice system? I'm sure things can be improved, but words such as these are just an insult to the devoted professionals working within the system.

Turning to blogs, Marilyn Stowe has written an excellent post on the 'lottery case', S v AG. She looks at the process used by Mr Justice Mostyn to reach his decision, and asks whether he was right when he held that the lottery winnings were a non-matrimonial asset. She concludes:

"...this case does demonstrate the wide parameters that exist in many cases, even those which at first sight seem straightforward. I would have given the husband a more generous award out of what was ultimately a lucky win 11 years ago."

Such, of course, are the vagaries of a discretionary system, something that many clients find difficult to understand, when they come to us expecting precise answers.

Not exactly news, but Lucy Reed at Pink Tape has posted further about the Narey Report. Lucy mentioned on Twitter this week her propensity for writing a lot of words, and she certainly doesn't let us down here. However, they are all very good words, in an excellent order, making the post very well worth a read. Here is a taster:

"We can never achieve perfect parenting. I can’t achieve it. My clients can’t achieve it. Those members of the judiciary, social work and other professions who have children don’t achieve it. Adoptive parents don’t achieve it. We all bumble along doing our best. Sometimes we fail to put the children first, make a textbook mistake. And some parents really do fail and fail irredeemably. But except at the extremes it is essentially a matter of degree, a spectrum."

One of those "I wish I had said that" moments.

Lastly, on the subject of Twitter, yesterday I had a brief conversation there about blawging with @michaelscutt, in which I expressed a preference (as I have done before) for blawgs that include something personal from their writers - it just seems to me that that is the essence of blogging. Both Marilyn and Lucy put a lot of themselves into their blogs, and hence are certainly on my 'preferred' list.

News Brief: A busy week...

bolch@supanet.com (John Bolch) — Fri, 21 Oct 2011 12:06:45 GMT

"At fault is primarily a justice and a family justice system which does not prioritise the needs of the child and takes forever to make critical decisions which matter hugely in ensuring the child is found the right home."

"...this case does demonstrate the wide parameters that exist in many cases, even those which at first sight seem straightforward. I would have given the husband a more generous award out of what was ultimately a lucky win 11 years ago."

"We can never achieve perfect parenting. I can’t achieve it. My clients can’t achieve it. Those members of the judiciary, social work and other professions who have children don’t achieve it. Adoptive parents don’t achieve it. We all bumble along doing our best. Sometimes we fail to put the children first, make a textbook mistake. And some parents really do fail and fail irredeemably. But except at the extremes it is essentially a matter of degree, a spectrum."

We're Nominated; Please Help Us Reach the Top!

rlgoldfarb@stoel.com (Richard Goldfarb) — Mon, 17 Oct 2011 23:00:00 GMT

We're pleased that Lexis-Nexis has nominated our blog for inclusion on its list of the top 25 business blogs of 2011.

Here's what you can do to help us win, and it's really, really simple:

Just leave a comment here. We hope that you'll leave a comment about how wonderful you think the blog is.

It's nice to be nominated; winning would be really nice, too. Thanks in advance for your help.

Round the Texas legal blogosphere

shenson@austin.rr.com (Scott Henson) — Thu, 13 Oct 2011 15:29:20 GMT

I thought I'd point readers to several blogs with informative and thought provoking recent posts up:

And say "howdy" to blogosphere newbie, Texas Criminal Defender.

Desirable personality traits in the legal industry

Fri, 07 Oct 2011 14:23:02 GMT

One of my favourite "To Read" sites is 3 Geeks and a Law Blog. Today they share
Elephant Post: What Is The Most Important Trait To Have In Your Profession?. I would highly recommend you read this whole post which has contributions by a wide variety of legal folk who chose to comment on one of a list of 24 personality traits that Greg Lambert and his blog colleagues identified from the book Character Strengths and Virtues by Christopher Peterson and Martin E. P. Seligman.

The list of traits included:

Zest: approaching life with excitement and energy; feeling alive and activated
Grit: finishing what one starts; completing something despite obstacles; a combination of persistence and resilience.
Self-control: regulating what one feels and does; being self-disciplined
Social intelligence: being aware of motives and feelings of other people and oneself
Gratitude: being aware of and thankful for the good things that happen
Love: valuing close relationships with others; being close to people
Hope: expecting the best in the future and working to achieve it
Humor: liking to laugh and tease; bringing smiles to other people; seeing a light side
Creativity: coming up with new and productive ways to think about and do things
Curiosity: taking an interest in experience for its own sake; finding things fascinating
Open-mindedness: examining things from all sides and not jumping to conclusions
Love of learning: mastering new skills and topics on one’s own or in school
Wisdom: being able to provide good advice to others
Bravery: not running from threat, challenge, or pain; speaking up for what’s right
Integrity: speaking the truth and presenting oneself sincerely and genuinely
Kindness: doing favors and good deeds for others; helping them; taking care of them
Citizenship: working well as a member of a group or team; being loyal to the group
Fairness: treating all people the same; giving everyone a fair chance
Leadership: encouraging a group of which one is a valued member to accomplish
Forgiveness: forgiving those who’ve done wrong; accepting people’s shortcomings
Modesty: letting one’s victories speak for themselves; not seeking the spotlights
Prudence/Discretion: being careful about one’s choices; not taking undue risks
Appreciation of beauty: noticing and appreciating all kinds of beauty and excellence
Spirituality: having beliefs about the higher purpose and meaning of the universe

Not surprising to me, librarians who contributed identified curiosity (x3 if you include Greg), social intelligence, citizenship, hope, and grit.

I was surprised that open-mindedness made the list from a (clearly superior and clever) Helpdesk Supervisor.

One of the personality traits that isn't on the list is Self awareness. In my opinion, knowing your strengths and weaknesses and the things that motivate you or drive you to procrastinate is a crucial part of being good at your profession. If you are unaware of what is driving you, it is difficult to know what kind of road to choose. Perhaps self awareness is less a personality trait and more a learned or naturally acquired skill.

I look forward to next week's Elephant Post offering of the least desirable personality traits in 'your' profession. Check it out next Friday, or be brave and contribute.

New Jersey Supreme Court Considering Guidelines Concerning Use of Electronic Devices in Courtroom

tcafferty@gibbonslaw.com (Thomas J. Cafferty) — Tue, 04 Oct 2011 19:17:34 GMT

The Bench Bar Media Committee of the New Jersey Supreme Court (“Committee”) has adopted, and forwarded to the Supreme Court, Guidelines for the Usage of Electronic Devices in New Jersey state courts. The proposed Guidelines comprehensively address the use of Electronic Devices in the courtroom, the common areas of a courthouse and the grounds of a courthouse. If adopted by the Supreme Court, the proposal will represent a major revision to the existing Guidelines.

The Guidelines broadly define the term “Electronic Device” as any portable device that has the capability to broadcast, record or take photographs. Acknowledging the rapid evolution in this area, the Guidelines provide that similar devices “whether now in existence or later developed” will fall within the purview of the Guidelines.

The Guidelines then define the permitted uses of Electronic Devices on the courthouse grounds, in common areas and in the courtroom.

A. COURTHOUSE GROUNDS
The Guidelines allow virtually unrestricted use of Electronic Devices, including the use of such devices for photography, recording or broadcasting, on the grounds outside the courthouse. The only caveats are security and insuring that the utilization of such devices does not interfere with ingress and egress to and from the courthouse.

B. COMMON AREAS OF THE COURTHOUSE
While in the common areas of a courthouse, any person may possess and use an Electronic Device for any purpose other than to take photographs and/or electronically record or broadcast. Utilization of Electronic Devices in the common areas for these latter purposes requires court permission. This restriction is designed to insure that the restrictions of the Guidelines on photographing, electronically recording, and/or broadcasting in the courtroom are not circumvented by engaging in those activities immediately outside the courtroom door.

C. INSIDE THE COURTROOM
For the first time since the inception of the original Guidelines, the use of Electronic Devices (other than still cameras and television cameras) is permitted in the courtroom. The Guidelines create a distinction between the use of Electronic Devices to broadcast or photograph within a courtroom and the use of such devices for all other purposes.

Utilization of an Electronic Device for purposes other than to photograph, electronically record and/or broadcast a proceeding requires the execution of an agreement (“Agreement”) to use Electronic Devices and the filing of that Agreement with the Court. Upon execution and filing of the Agreement, which is valid for one year, the person may use an Electronic Device inside a courtroom to silently take notes and/or transcribe and receive data communications in the form of text only. In addition to the execution and filing of an Agreement, however, the individual must specifically request permission from the court. The Guidelines also continue existing restrictions on photographing, recording and/or broadcasting certain images from within a courtroom, such as jurors.

D. GENERALLY
The Guidelines further provide a mechanism for attorneys desiring to utilize an Electronic Device in a courtroom for purposes other than to photograph, electronically record and/or broadcast, to do so by annually completing the Agreement and filing same with his or her New Jersey Lawyers’ Fund for Client Protection form.

Finally, in recognition that individual cases may require specific restrictions on the use of Electronic Devices, the Guidelines specifically provide that a Court retains discretion to impose such restrictions on the use of Electronic Devices necessary to implement the goals of the Guidelines, which include avoidance of interference in court proceedings and maintenance of appropriate courtroom decorum.

The Supreme Court has published for comment the proposed Guidelines which may be found on the Judiciary’s website. The comment period ends Friday, October 28, 2011. For related blog posts regarding the use of electronic devices in the courtroom, click here and here.

Thomas J. Cafferty is a Director in the Gibbons Business & Commercial Litigation Department. Nomi I. Lowy, Counsel to the Gibbons Business & Commercial Litigation Department, and Lauren James-Weir, an Associate in the Gibbons Business & Commercial Litigation Department, co-authored this post.

Technology awareness necessary for workplace investigators

Tue, 27 Sep 2011 17:35:18 GMT

I have technology on the brain these days. My summer ended with a bang and my fall began with a boom as a result of receiving an avalanche of requests by organizations to conduct investigations for them into workplace human rights complaints. Honestly, I’ve had so many requests for investigation work that it [...]

I have technology on the brain these days.

My summer ended with a bang and my fall began with a boom as a result of receiving an avalanche of requests by organizations to conduct investigations for them into workplace human rights complaints. Honestly, I’ve had so many requests for investigation work that it made me wonder whether the summer heat we’ve had in Manitoba this year had an effect on people in ways I never imagined.

But, what in the world does this have to do with technology?

Well, virtually every single complaint that has crossed my desk in the last month and a half has a technology angle to it. Either there are e-mails that form the basis of the complaint or someone was complaining about comments made on a blog, Facebook or Twitter or text messages served to be the chosen avenue for inappropriate comments and discussions.

Now, fortunately, I’m a bit of a techno-geek. I’m always reading about the latest technology companies are pushing us to use. I use cloud-based technology to improve my efficiencies and enhance the level of service I’m able to provide to those who hire me. I’m heavily engaged (well, when I’m not conducting workplace investigations, that is) working on my blog and I maintain a LinkedIn, Facebook and Twitter account to connect with my clients and those generally interested in what I have to say on the topic of workplace human rights. As a solo practitioner I’ve spent a good many hours acting as my own IT department. I’m also a mom of twins who works from home and sometimes has to rely on the good graces of pre-teen and teenage sitters who only “speak” to me via text to coordinate child care scheduling. So, I think I’m pretty immersed in this new world of ever-changing and ever-increasing technology that we now live in (check out this post by Nicole Black to get a true sense of just how much the world has changed from a technology perspective in the past few years). And this self-immersion in technology is fortunate given the pattern I see forming in the complaints I’m being asked to investigate — the pattern of technology being used as the vehicle through which people are being allegedly subjected to discrimination or harassment.

The reason my understanding of technology is a fortunate thing for me is because, as a person often called in to conduct investigations into complaints involving the use of technology, I have good insight into the kinds of questions I need to ask to get at the information I need in order to determine whether discrimination or harassment has occurred using that technology. Is your blog private or public? Is your Facebook profile open for all to see or have you established your settings to limit who has access to what you post? Did you make that comment on your Facebook wall or was it in a direct message? What’s your Twitter ‘handle’? Did you @ message that tweet or was it a generalized publication to the twitterverse? Were those text messages tampered with or is what I’m seeing just split messaging?

And these are just examples of initial questions. The answers given will likely lead to more questions. You may need to have a gander at the publicly accessible accounts or you may need to determine if you have authority to request access to those accounts. But, if you then do gain access, do you know how to interpret what you’re seeing? If you happen to be fortunate to work for an organization that has an IT department, don’t think for a moment that what I’m saying does not apply to you. The IT people might be able to extract information for you but you still need to direct them as to what you’re looking for and you still need to be able to examine, understand and interpret the information you’ve gained access to in order to determine how it fits into your investigation and what you can conclude from it.

All of this got me to thinking. Well, aside from the fact that I realize I now speak in a language that results in many people looking at me strangely. How in the world could I possibly investigate these complaints if I did not have this insight into the operation of the technology being used? Frankly, I do not think I would be capable of exhaustively examining the circumstances that form the basis of the complaint. And that would likely have an impact on the conclusions I reach on the evidence.

And, then this got me to thinking again. (Yes, I’m in a reflective phase at the moment. Just chalk it up to the after-shock of the volume of complaints I’ve been contending with of late. Well, either that or the summer heat has gotten to me too). How in the world would people like those of you reading this blog and who may well be responsible for conducting investigations internal to your organizations handle these technology-laden situations if you did not have this same technology background I do? In all honesty, I think you would be tremendously disadvantaged in the investigation process. Your ability to ask the ‘right’ questions and get at the best information would be hampered. And any time you are hampered in how you can conduct your investigation the overall quality of the evidence you ultimately gather is weakened. And weak evidence leads to poor conclusions. And poor conclusions lead to bad decisions. Bad decisions lead to liability. And you know I don’t want that for you!

So if you do happen to find yourself investigating workplace complaints from time-to-time and you happen to be the type of person who is generally averse to using technology or you are one of those individuals who thinks that Facebook and Twitter are a complete waste of time, I’m going to ask you to strongly consider dipping your toes into these new technology waters anyway. Open up a Facebook and Twitter account. Friend some friends. Find some people to follow. Get on LinkedIn and connect with colleagues. Read a few blogs. And, not just those written by professionals (like this one) but have a gander at the ones written by Jane and Joe Public to get a real flavor for what people are saying on the internet. SMS (text) or BBM (Blackberry Messenger) your partner or spouse. Heck, text your kid even if it’s just for fun (you’ll either totally creep them out or you might actually get them to talk to you!).

See how these technologies operate in the real world.

And prepare yourself for the day you’ll be faced with your own avalanche of technology-laden complaints to investigate. Because that avalanche is coming. Even at the end of a long, hot summer.

Image above by wagg66.

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