Are Westlaw and LexisNexis violating copyrights by selling access to filed briefs? Some commentators say yes, maybe.

/

I'm as guilty of this lazy thought process as the next lawyer.  I've always assumed, perhaps incorrectly, that when a brief was filed with a court, it was some sort of public commodity, available for any use.  Not so fast.  The July 23, 2009 Daily Journal ran a story about Irvine attorney Edmond Connor, who wrote to the California Supreme Court to express concern about the the practice of providing all appellate briefs filed in California to Westlaw and Lexis, free of charge.  Paul Lomio, LexisNexis and Weslaw violating copyright? (July 23, 2009) legalresearchplus.com.

The Volokh Conspiracy stepped into the discussion:

The argument for infringement is actually moderately strong. Like most other documents, briefs are protected by copyright the moment they are written. The fact that they're filed in court doesn't waive any copyright. Lexis and Westlaw's distribution of the briefs is thus presumptively copyright infrigngement.

Eugene Volokh, Do Lexis and Westlaw Infringe Copyright When They Post Briefs Filed in Court? (July 23, 2009) volokh.com.  Legal Research Plus followed up with a link to the actual letter by Mr. Connor (in which he suggests that a class action could be one way to resolve the issue).  The letter is rather persuasive in describing the current system as unfairly favoring two commercial actors at the expense of the copyright holders.  I'm going to go out on a limb and say that it sounds like a federal class action waiting to happen if a corrective measure isn't implemented.

Via: @richards1000 (twitter page)

Brinker news, and other California Supreme Court activity

/

This blog's last post on Brinker Restaurant v. Superior Court (Hohnbaum) indicated that the Reply Brief would be filed on July 6, 2009.  After a few unexpected bumps, the Reply Brief was filed on July 20, 2009.  The case is fully briefed.  Now the amicus bloodbath may commence.

In other Supreme Court news, today the Supreme Court denied review in Gomez v. Lincare (April 28, 2009).  See this prior post for information about Gomez.

And in Miller v. Bank of America, 46 Cal. 4th 630 (2009), the Supreme Court denied a Petition for Modification of the opinion.

Judge Victoria Chaney confirmed for seat on California Court of Appeal

/

Judge Victoria Gerrard Chaney, of the Superior Court of Los Angeles County, was confirmed as an Associate Justice of the Second Appellate District, Division One.   The Judicial Council's press release can be found here.

Your quarterly Brinker update

/

When the California Supreme Court grants a Petition for Review, it's okay to leave and go get a cup of coffee.  You have time.  But that doesn't mean that nothing is happening behind the scenes.  In Brinker Restaurant v. Superior Court (Hohnbaum) we have developments.  On May 7, 2009, Real Party in Interest Hohnbaum requested an extension until August 4, 2009 to file the Reply Brief on the merits.  On May 14, 2009 the Supreme Court granted an extension through June 22, 2009, with the additional proviso that no further extensions were contemplated.  However, today the Supreme Court granted a two-week extension to that previously firm deadline.  The Reply Brief on the merits is now due on July 6, 2009.  After that, the amicus bloodbath will ensue (they are due on July 20, 2009).

California Supreme Court activity for the week of June 15, 2009

/

The California Supreme Court held its (usually) weekly conference today.  Notable results include:

  • A Petition for Review was denied in Etheridge v. Reins International California, Inc., 172 Cal. App. 4th 908 (2009) (tip pooling)
  • A Petition for Review was denied in Budrow v. Dave & Buster's of California, 171 Cal. App. 4th 875 (2009) (tip pooling)
  • A Petition for Review was denied in Franco v. Athens Disposal Company, 171 Cal. App. 4th 1277 (2009) (class action waiver and PAGA waiver in arbitration agreement)
  • The Court also issued an opinion modification but denied rehearing in Strauss v. Horton (2009)

This was a rare week where the California Supreme Court denied review or other relief in every matter considered in Conference.

Courtroom View Network provides sample video from Diet Drug trial opening statement

/

On March 9, 2009, I mentioned in a post that Courtroom View Network would be providing live and on-demand video coverage of the Diet Drug trial in the Los Angeles Superior Court, Judge Anthony Mohr presiding.  After that post, Courtroom View Network was kind enough to provide a long sample clip from the Opening Argument.  It's a chance to see how modern technology will change trial practice as it has existed for centuries, and I encourage you to have a look.

Read More

Technology Revolution For The Legal Field

/

The times, they are a changin'.  Alameda County is set to allow the a real-time web-based video feed of a complex personal injury trial.  This event touches on issues of technology, complex litigation and class actions.  Courtroom View Network will webcast the trial and host archived video on its website.  Next week I should have some sample video to share.  Check back here throughout the week for more information and access to video samples.

Here is some background information from Courtroom View Network's press release about this unusual event:

Courtroom View Network, the company that pioneered showing trials of interest to legal and financial professionals over the Internet, is showing live coverage of the welding fumes liability trial, Thomas v. Lincoln Electric Co. (Case No. RG0722122) in Alameda County (Oakland) Superior Court. The Thomas trial marks the first time allegations that a worker became ill from exposure to welding rod fumes has been heard by a California state court jury. The Thomas case is also the first time Courtroom View Network has been admitted to Webcast a trial from Alameda County.

The plaintiffs allege that welding rod manufacturers knew since 1932 that welding fumes are toxic. They also contend that the industry did not adequately warn welders that the fumes could cause various neurological disorders. Thomas alleges he has suffered “severe physical and emotional injuries” from welding fume exposure. The defendants deny all the allegations.

There is also a pending national class action suit involving thousands of plaintiffs who claim they were injured by welding rod fumes. Four “bellwether” trials have been held; one jury awarded $20.5 million in damages and another $2.4 million. The two other trials resulted in no damages being awarded.

Courtroom View Network is showing the Thomas trial on its Web site, www.courtroomlive.com.  The trial is aired in full, without commercials or commentary. The trial will also be indexed for on-demand viewing.

Courtroom View Network brings three years of experience of Webcasting high-stakes civil litigation to the Thomas trial. Courtroom View Network has covered multiple legal proceedings across the country, including such cases as “Jose Adolfo Tellez et al v. Dole Food Company Inc et al” and “Norman Turner v. Chevron Corporation” in Los Angeles Superior Court. Courtroom View Network’s target audience are members of the legal and financial community who require instant, comprehensive coverage of litigation that affects their business.

Read More

Travelers Casualty v. Brenneke: How to serve a recalcitrant defendant

/

Ninth Circuit SealJust because your case is complex doesn’t mean that you don’t have to worry about ordinary tasks . . . like serving parties. While The Complex Litigator doesn’t spend much time covering civil procedure issues outside of the class action device, there are exceptions to almost every rule, as with a recent Ninth Circuit decision regarding service of process. In Travelers Casualty and Surety Company of America v. Brenneke (January 9, 2009), the Ninth Circuit examined the nature of “person service” when a defendant studiously avoids service of process.

Describing the disputed service of process, the Court said:

“ In connection with its motion to enter default, Travelers submitted the affidavit of Phil Sheldon (“Sheldon”), a process server for Barrister Support Service, which Travelers had hired to effectuate service upon Brenneke. Sheldon stated that he had experienced “significant difficulty” in serving Brenneke in the past, and that he was aware of other process servers’ having experienced similar difficulty. He also indicated that he had successfully served legal documents personally on Brenneke on prior occasions. As to the current matter, he stated that he had made four separate visits to Brenneke’s home between March 17, 2006 and April 2, 2006, attempting to accomplish service. No one answered the door or intercom even though, on more than one occasion, there were two or three vehicles in the driveway. On both his first and third visits to that residence, Sheldon left a note for Brenneke to contact Barrister Support Service, but he did not do so. During what was apparently the fifth attempt, on the evening of April 2, 2006, an adult male answering to the name of Paul Brenneke responded to Sheldon’s ringing on the intercom at Brenneke’s residence. When Sheldon identified himself as a process server, that person responded “Oh great,” but never opened the door. However, Sheldon observed Brenneke standing behind the window next to the front door watching him. Sheldon then held the summons and complaint out towards the window, and announced in a loud voice “You are served.” Sheldon further indicated that Brenneke watched him place the documents on the doorstep. Sheldon thereafter completed a proof of service form.

(Slip op., at p. 166.) I find this sort of behavior very entertaining. Many years ago, I was counsel in a matter where one defendant jumped in a car and locked the door to avoid service. The papers were left on the windshield. I was successful in arguing that “personal service” had been effectuated.

District Court Judge George H. Wu, sitting by designation, delivered the opinion of the Court.  As an aside, the Ninth Circuit has made viewing new opinions very easy through their website with an embedded PDF viewer.

Read More

Judges in Los Angeles county will likely lose over $40,000 in county benefits after taxpayer challenge

/

Greatsealcal100Salaries for judges in California are "prescribed" by the legislature via constitutional mandate. In Sturgeon v. County of Los Angeles (October 10, 2008) the Court of Appeal (Fourth Appellate District, Division One) all but declared unlawful a substantial benefits package provided by Los Angeles county to its superior court judges. The Court of Appeal reversed a summary judgment granted to Los Angeles county in a taxpayer suit challenging the payments by Los Angeles county. The Court summarized the conclusion:

“Section 19, article VI of the California Constitution requires that the Legislature "prescribe compensation for judges of courts of record." The duty to prescribe judicial compensation is not delegable. Thus the practice of the County of Los Angeles (the county) of providing Los Angeles County superior court judges with employment benefits, in addition to the compensation prescribed by the Legislature, is not permissible. Accordingly, we must reverse an order granting summary judgment in favor of the county in an action brought by a taxpayer who challenged the validity of the benefits the county provides to its superior court judges.

(Slip op., at pp. 1-2.) The benefits in question are not insubstantial:

“In sum, in addition to the salary, benefits and retirement prescribed by the Legislature, in fiscal year 2007 each superior court judge in Los Angeles was eligible to receive $46,436 in benefits from the county. This amount represented approximately 27 percent of their prescribed salary and cost the county approximately $21 million in fiscal 2007.

(Slip op., at p. 3.)  On December 23, 2008, the California Supreme Court declined to review the decision.  Based on the analysis in the opinion, it seems unlikely that the result will be anything but a ruling that Los Angeles must terminate the benefits package.

While the outcome may be constitutionally correct, the result is not ideal.  It is already difficult enough to entice qualified candidates to leave behind lucrative private practice for the often thankless work of the judiciary.  A loss of over $45,000 in benefits won't help.  As maxims go, "you get what you pay for" is one of the habitually accurate ones.  How many judges on the fence will now hit the eject button for the greener pastures of private mediation and arbitration?

Read More

Management changes coming to Complex Litigation Court in Los Angeles County

/

The batons will pass at Central Civil West (CCW), the courthouse designated to for Los Angeles County's complex litigation panel.  Judge Peter Lichtman will assume Presiding/Supervising status from Juddge Carolyn Kuhl.  Judge Carl West will assume Assistant Presiding/Supervising status from Judge Victoria Chaney.

As a result of this change, Judge West will review all new class actions filed in Los Angeles County to determine whether each such action will be designated as "complex" and assigned to a judicial officer at CCW.  Judge Lichtman will handle a similar function with respect to non-class cases provisionally designated as "complex."  In addition, Judge Lichtman will review Petitions for Coordination.

Read More