On June 12, 2008, The Complex Litigator reported that Sprint avoided liability after a California jury
ruled in its favor in a trial involving the contentious issue of early
termination fees (ETFs) in wireless service contracts. At that time, other carriers set for trial on the same issue were believed to be watching the Sprint trial as an indicator of how their trials might resolve. But, in a surprising twist, Verizon has apparently settled the class action suit it was facing after the start of its trial last week. The settlement is described as having a value of $21 million dollars, although there is no immediate information about the terms of that settlement (i.e., whether it contains a "claims-made" component, or other provision that would impact Verizon's realized cost from the settlement). Verizon spokesman Jim Gerace is reported to have said, "This suit was a distraction. This was a quick way to resolve it."
I previously covered the decision in Costco Wholesale Corp. v. Superior Court (2008) [no longer citeable] in the context of a discussion about PMQ depositions. While the premise of that post remains valid, the use of Costco as an example does not. The Supreme Court has granted review of that decision (denying a Petition that sought to reverse an order compelling production of parts of an opinion letter from counsel to a client):
“Petition for review after the Court of Appeal denied a petition for peremptory writ of mandate. This case presents the following issues: (1) Does the attorney-client privilege (Evid. Code, section 954) protect factual statements that outside counsel conveys to corporate counsel in a legal opinion letter? (2) Does Evidence Code section 915 prohibit a trial court from conducting an in camera review of a legal opinion letter to determine whether the attorney-client privilege protects facts stated in the letter?
It doesn't look all that promising for the Court of Appeal's opinion, considering the history of the matter: a Petition was filed, an OSC issued, the OSC was dismissed without an
opinion, the Supreme Court directed the Court of Appeal to issue an
OSC, the matter was heard, and, finally, the Petition was denied. It looks like the Supreme Court is very interested in the outcome here.
Code of Civil Procedure section 425.16 Motions to Strike provide ample opportunity for complex legal issues. In Tender v. www.jewishsurvivors.blogspot.com (July 7, 2008) ___ Cal.Rptr.3d ___ , the Court of Appeal (Sixth Appellate District) considered whether a request for the issuance of subpoenas, without the filing of a complaint or other action, nevertheless fell within the provisions of section 425.16.
The facts are relatively simple. Mordecai Tendler obtained a pre-filing discovery order in Ohio as part of his effort to uncover the identities of anonymous individuals who had posted statements about him on the Internet that he considered defamatory. (Slip op., at p. 1.) After Google refused to respond to Ohio subpoenas, Tendler sought issuance of subpoenas in Santa Clara, based upon the Ohio Order. Importantly to the Court of Appeal's analysis, "filed a 'request[]' in Santa Clara County Superior Court asking the court 'to issue a case number and endorse' the four subpoenas. The court filed a 'civil case cover sheet' on May 24, 2006 and assigned a case number." (Slip op., at 2.)
The Court of Appeal first established its obligation to interpret section 425.16 in a manner consistent with the plain language of the statute and reflective of the Legislature's intent. The Court then construed the language of section 425.16, concluding that the statute did not encompass requests for the issuance of subpoenas, absent the filing of an actual complaint or similar pleading:
“Even the broadest interpretation of the plain language of section 425.16 cannot stretch it to cover a request for a subpoena. A request for a subpoena is not a complaint, a cross-complaint, a petition or any equivalent pleading, does not contain any causes of action, and does not serve to initiate a judicial proceeding.
(Slip op., at p. 5.)
The Court concluded by noting (1) that if the Legislature intended to include activities, such as requests for subpoenas, in section 425.16, it will need to explicitly say so, and (2) a simple motion to quash a subpoena provides sufficient protection to the Doe individuals whose identities were sought by Tendler.
Complex litigation is a matter of degree. A matter can be complex because of the number of parties (e.g., construction defect cases), procedural intricacies (e.g., class actions) or the novelty of legal issues involved. But sometimes a matter becomes complex just because two juggernauts are litigating over stakes so large that everything in their litigation is larger than life - litigation on steroids.
The complex nature of an action isn't always self-evident; however, one occasionally encounters a lawsuit where the briefest summary of the action is enough to indicate that the matter will probably be complex:
“Plaintiffs in these related lawsuits (the “Viacom action” and the “Premier League class action”) claim to own the copyrights in specified television programs, motion pictures, music recordings, and other entertainment programs. They allege violations of the Copyright Act of 1976 (17 U.S.C. § 101 et seq.) by defendants YouTube and Google Inc., who own and operate the video-sharing website known as “YouTube.com”.
(Slip op., at pp. 1-2, footnote omitted.) In the Viacom action, the Plaintiffs moved to compel Google (and its business YouTube) to produce electronic information that shocks the conscience in its scope and grandeur:
“Plaintiffs move jointly pursuant to Fed. R. Civ. P. 37 to compel YouTube and Google to produce certain electronically stored information and documents, including a critical trade secret: the computer source code which controls both the YouTube.com search function and Google’s internet search tool “Google.com”.
(Slip op., at p. 4.) In addition to requesting Google's heart on a platter (its search code), which, according to submitted evidence "is the product of over a thousand person-years of work," the Viacom Plaintiffs sought other, highly confidential trade secret information from Google, including:
The computer source code for a newly invented “Video ID” program wherein copyright owners to furnish YouTube with video reference samples from which YouTube can use its proprietary search code to locate video clips in its library that have characteristics sufficiently matching those of the samples as to suggest infringement.
Copies of all videos that were once available for public viewing on YouTube.com but later removed for any reason.
The “User” and “Mono” databases that contain information about each video available in YouTube’s collection, including its user-supplied title and keywords, public comments from others about it, whether it has been flagged as inappropriate by others (for copyright infringement or for other improprieties such as obscenity) and the reason it was flagged, whether an administrative action was taken in response to a complaint about it, whether the user who posted it was terminated for copyright infringement, and the username of the user who posted it.
The schemas for the “Google Advertising” and “Google Video Content” databases. (A schema is an electronic index that shows how the data in a database are organized by listing the database’s fields and tables, but not its underlying data.
Copies of all videos designated as private by YouTube users.
And, perhaps most significantly, Defendants’ “Logging” database, that contains, for each instance a video is watched, the unique “login ID” of the user who watched it, the time when the user started to watch the video, the internet protocol address other devices connected to the internet use to identify the user’s computer (“IP address”), and the identifier for the video.
The Court granted significant portions of the motion to compel:
“(1) The cross-motion for a protective order barring disclosure of the source code for the YouTube.com search function is granted, and the motion to compel production of that search code is denied;
(2) The motion to compel production of the source code for the Video ID program is denied;
(3) The motion to compel production of all removed videos is granted;
(4) The motion to compel production of all data from the Logging database concerning each time a YouTube video has been viewed on the YouTube website or through embedding on a third-party website is granted;
(5) The motion to compel production of those data fields which defendants have agreed to produce for works-in-suit, for all videos that have been posted to the YouTube website is denied;
(6) The motion to compel production of the schema for the Google Advertising database is denied;
(7) The motion to compel production of the schema for the Google Video Content database is granted; and
(8) The motion to compel production of the private videos and data related to them is denied at this time except to the extent it seeks production of specified non-content data about such videos.
(Slip op., at pp. 24-25.)
Privacy concerns have been front and center since the issuance of the Order. (See, e.g., Rob Pegoraro, Court Invites Viacom to Violate YouTube Users' Privacy (July 7, 2008) www.washingtonpost.com; Kenneth Li and Eric Auchard, Court order on YouTube user data fans privacy fears (July 4, 2008) www.reuters.com.) In theory, data about IP addresses would allow a reconstruction of the history of video viewing at each computer on the Internet. In practice this would be more difficult in many (but not all) instances, since most Internet users have dynamic IP addresses (IP addresses that change), at least at home.
Complex? Undoubtedly. Any discovery Order that requires the production of terabytes of data is sufficient to define an action as complex. But Google isn't known to be bashful, so the fireworks may have just begun.
While listening to one of the many podcasts I subscribe too, I hear a recommendation for the Microsoft blogging tool, Windows Live Writer. The recommendation was from Paul Thurrott, of SuperSite for Windows fame, so I took the suggestion seriously and downloaded the tool. The one word review: amazing.
What's the relevance to complex litigation practice? Technology-assisted efficiency. If you are reading this site, you know that technology is one dividing line between success and failure in modern law firms. Within the huge topic of technology are the many sub-parts: practice management tools, document management tools, billing programs, contact management programs, and so forth.
Marketing by law firms is now stepping across that digital divide, creating another segment of "haves" and "have nots." The "haves" understand that an Internet presence is critical. A subset of those understand that a web site, alone, is insufficient, because relevant, frequently refreshed content is king in the eyes of Google (and what Google decrees, the rest of the search Internet follows). Hence, blogs. Blogs are one publishing platform and paradigm that encourages frequent, topical content publication.
Having decided to blog, attorneys can still benefit from efficiency tools. That's where Windows Live Writer joins the mix. Windows Live Writer is a local application that is dedicated to content creation for blogs. When you first install Windows Live Writer, and assuming you have an existing blog, it asks for the url of the blog and your logon information. The software quickly analyzes the blog, the service it resides on, and its settings. It then downloads all of the customized settings into Windows Live Writer. In my case, it correctly detected my blogging service (TypePad), my customized styles settings, and my customized categories. Once the analysis is complete, you can then compose posts, complete with the blog's customized settings in place, save drafts of a post, and upload the post when finished (or save drafts to finish later).
Windows Live Writer works with Microsoft Spaces, Sharepoint, Blogger, TypePad, LiveJournal, Movable Type, WordPress, Community Server, dasBlog and Radio Userland, among others. The beauty of this niche application is that it does what it sets out to do incredibly well, without getting in the way of itself. The User Interface is clean and intuitive. You can even add more than one blog to the program - a boon if, for example, you manage multiple blogs.
For those users suffering misery with the TypePad editor update, this may be a truly welcome relief.
The Complex Litigator turns 100 today, just in time to celebrate our nation's birth. But in all seriousness, thanks to everyone that has supported this new blog, visited this blog, commented about it, complimented it, and passed it on to colleagues. I may catch my breath over the long, holiday weekend, then it's right back on the road to 200.
Roughly 6700 visits in first three months isn't half bad, if I do say so myself (and I do). But The Complex Litigator won't let its guard down. I'll continue to watch for new case law relevant to class actions and complex litigation. I'm working on a major post concerning the changing of the guard at major complex litigation "big law" firms. I'll continue to review major pieces of software that can assist in a complex litigation/class action practice - Acrobat 9 is next on deck. And I'll continue to test "web 2.0" services that might be a good fit in a modern practice.
Defense counsel are well acquainted with the concept of conflicts checks at the outset of a matter. Most defense firms with more than a handful of attorneys have electronic systems in place that track all past representations for the purposes of assessing potential conflicts when a matter is first offered to a firm. Plaintiff-side practitioners, at least in my observations, are less rigorous about conflict checks, due, in part, to the infrequency with which conflicts arise in a predominantly plaintiff-side practice. While the infrequency of conflicts allows for laxity without consequence in most cases, when conflicts do surface, the results can be painful.
For example, in Baas, et al. v. Dollar Tree Stores, Inc., (N.D. Cal. Case No. 07-03108 JSW), plaintiffs' counsel undertook to represent two hourly employees in a putative class actions against Dollar Tree Stores, Inc. (“Dollar Tree”), contending that Dollar Tree altered the time records of its employees and, thus, failed to compensate employees for all of the time that they actually worked. Plaintiffs moved for class certification. The Court denied the motion on the sole ground that a conflict of interest by counsel prevented them from adequately representing the class.
Rule 23(a)(4) requires that "the representative parties will fairly and adequately protect the interests of the class." (Fed. R. Civ. P. 23(a)(4).) Adequacy of representation is a two-part analysis, which asks "(1) Do the representative plaintiffs and their counsel have any conflicts of interest with other class members, and (2) will the representative plaintiffs and their counsel prosecute the action vigorously on behalf of the class?" (Staton v. Boeing Co. (9th Cir. 2003) 327 F.3d 938, 957.) In Baas v. Dollar Tree, the first question was answered "yes," leading the Court to conclude in its April 1, 2008 Order that counsel could not adequately represent their clients. The Court explained the source of the conflict:
“Dollar Tree argues that Plaintiffs’ counsel’s representation of John Hansen (“Hansen”), the manager of the store in which named Plaintiffs Baas and Lofquist used to work, in another lawsuit against Dollar Tree creates a conflict of interest. “The responsibility of class counsel to absent class members whose control over their attorneys is limited does not permit even the appearance of divided loyalties of counsel.” Kayes v. Pacific Lumber Co., 51 F.3d 1449, 1465 (9th Cir. 1995) (quoting Sullivan v. Chase Inv. Serv. of Boston, Inc., 79 F.R.D. 246, 258 (N.D. Cal. 1978)). As the court explained in Kayes, “[t]he ‘appearance’ of divided loyalties refers to differing and potentially conflicting interests and is not limited to instances manifesting such conflict.” Id.
(Opinion, at p. 3.) After setting forth various rules of professional conduct, the Court explained where the conflicts could materialize in the dual representations:
“Here, Plaintiffs’ counsel’s client Hansen is a witness in this matter. Lofquist testified in her deposition that Hansen was aware that she worked off the clock in his presence and that Hansen encouraged her to do so. (Declaration of Beth Hirsch (“Hirsch Decl.”), Ex. F at 247:4-248:17. Hansen testified that Lofquist was paid for the time she worked and that he never asked anyone to come in and work off the clock. (Hirsch Decl., Ex. D at 547:23-548:16). He further testified that he knew it was against Dollar Tree’s policy to misrepresent the time employees worked or took breaks. (Id. at 648:13-17). To reconcile the testimony of Hansen and Lofquist, Plaintiffs’ counsel will either need to portray Hansen as a liar or as a manager who knowingly violated his company’s policies. Plaintiffs counter that Plaintiffs’ and Hansen’s claims and class actions are distinct and do not conflict with one another. Plaintiffs further argue that because Hansen is merely involved as a witness in this matter, he is not placed in any jeopardy of being liable. Plaintiffs thus focus on the existence or absence of any conflicts between the two cases and fail to address the duty of loyalty Plaintiffs’ counsel owe to all their clients.
From the testimony in the record, it appears as Plaintiffs’ counsel will either have to cross-examine Hansen and impeach his credibility, or “soft-pedal” their examination of Hansen to the detriment of their representation of the class members in this action. Even if this conflict of interest could be waived, Plaintiffs’ counsel would need to obtain waivers from every class member, which, as a practical matter, they cannot do from the absent class members. Therefore, the Court concludes that Plaintiffs have not demonstrated their counsel would adequately represent the class as required by Rule 23(a)(4). Failure to satisfy any one of Rule 23’s requirement precludes class certification. Rutledge v. Electric Hose & Rubber, Co., 511 F.2d 668, 673 (9th Cir. 1975); see also Sipper v. Capital One Bank, 2002 WL 398769, *4 (C.D.Cal. Feb. 28, 2002) (denying motion for class certification based on plaintiffs’ counsel’s conflict of interest). Accordingly, the Court denies Plaintiffs’ motion for class certification.
(Opinion, at p. 5.) In a nutshell, plaintiffs' counsel reached one rung too far and were cut off at the knees for it. Had they fully explored the potential for conflict at the outset of the second case, they may have concluded that a referral of the case to another firm was the better course of action.
UPDATE: A reader informs me that the Acrobat.com widget is not functioning correctly. I've had some problems with it myself in getting this post up. It is possible that the pdf file contains some sort of error. If I can't get it fixed, I may have to see if iPaper works any better with this file.
UPDATE 2: It appears that Acrobat.com is experiencing some problem today. I am presenting the Order through Scribd.
The beauty of the internet resides in the ongoing evolution (or revolution) in the way that information is collected, distilled and presented. A number of websites index legal subject matter blogs. (See, e.g., Justia.com, the ABAJournal Blog index, and Blawg.com.) LexMonitor offers a new twist on the idea of a blawg index. Rather than simply indexing all law blogs, LexMonitor collects content from the blogosphere and attempts to present and catetorize it in ways that will help visitors follow discussions, concepts or authors of interest. From the site:
“LexMonitor is a free daily review of law blogs and journals highlighting prominent legal discussion and the lawyers and other professionals participating in this conversation.
Pulling from nearly 2,000 sources and 5,000 professional authors, LexMonitor will shine a light on the ongoing conversation among thought leaders in the law for the benefit of the legal profession and the public at large.
LexMonitor is not a destination site where "you’ll read a newspaper," if you will. We want to make content from the legal blogosphere more accessible, meaningful, and valuable by highlighting discussion, blogs, tags, and authors you may wish to follow.
LexMonitor is owned & operated by LexBlog, Inc., which provides a turnkey blog solution to professional services businesses, primarily law firms. However, LexMonitor includes legal blogs that contributed to the online dicusssion of legal issues,irrespective of whether LexBlog's blogging solution is used on the blog.
In a recent post about e-Discovery issues and text messages, I used the Acrobat.com embedded flash widget to allow visitors to read an Opinion by a District Court without the need to fire up Acrobat or download a file. Acrobat.com now has a competitor of sorts in the field of flash-embedded documents, compliments of Scribd. Scribd is "a Silicon Valley startup creating technology that makes it easy to share documents online." In February of this year, Scribd launched iPaper, a flash-based tool for presenting documents on the web. Scribd offers the iPaper format through its the Scribd service, which, among other things, lets users:
Upload documents in many different formats, including Adobe PDF, Microsoft Word, Adobe PDF, plain text, HTML, PowerPoint, Excel, OpenOffice, JPEG, and more
Embed your documents in a blog, Facebook profile, or other external website with your fonts, images, and formatting fully intact
Host a document at Scribd with its own unique URL
Use unlimited storage
Obtain fast indexing by Google and other major search engines will ensure that content is easily found by just about everyone
Keep certain documents private or share with a limited number of authorized persons
Automatically convert published content into PDF, Word, and plain text
Scribd is attempting to build a community around document sharing and searching. Whether that will be successful remains to be seen. And Acrobat.com offers a number of collaboration and authoring tools not yet found on the Scribd service. Thus, in all fairness to both companies, Scribd is not precisely a competitor to Acrobat.com. The direct point of comparison lies in the ability to use flash to embed document images into web pages and upload and store documents for sharing in other ways. In the meantime, take a look at an e-Discovery Order in the iPaper format:
Again, if you don't have flash installed, or are viewing this post through a feed, a pda, or another method that does not utilize flash technology, you will not see the embedded object. For those viewers, here is the direct link to the Order on Scribd's service.
UPDATE: After checking the appearance of the Order on the blog, I noticed that ads were inserted into the document. When I created an account on Scribd, I configured the account so that ads would not be inserted into any documents. While it might be a simple mistake, I would not like to think that my choice for ads was overwritten by Scribd. I'd be interested in hearing if anyone else using Scribd has noticed this issue.
If you've ever been curious about the many "credit monitoring" services advertised just about everywhere, you now have an opportunity to test one of those services for free as part of a class action settlement. TransUnion, one of the three dominant credit repositories, was accused of selling consumers' personal data to marketers in violation of federal law. Sixteen different class-action suits from around the country were consolidated into a single case against TransUnion in U.S. District Court in Chicago.
Under the terms of the settlement reached in the consolidated action, you are eligible for benefits if you opened a credit account (credit cards, student loans, auto loans or mortgages, for example) between Jan. 1, 1987, and May 28, 2008. About 160 million consumers qualify for benefits under the settlement, which includes:
Nine months of free credit-file monitoring if you agree not to sue TransUnion seeking damages. In addition to monitoring—the bureau alerts you by e-mail within 24 hours of any significant change in your credit data—you can also lock your file so lenders, insurance companies and others cannot access your report without permission. In addition, you can receive "unlimited daily access" to your credit report and TransUnion credit score, plus other credit analysis tools. TransUnion estimates the retail value of this at $115.50.
Six months of free credit monitoring, credit-lock privileges and unlimited access to your credit report and score. This option, valued at $59.75, allows you to receive a possible cash payment out of the $75 million fund if any money is left over after paying lawyers' fees (I repeat, if any money is left over - it will be interesting to see if anything is left over), notification costs and named plaintiffs.
Even if you choose to sue the company, you can still receive six months of free credit monitoring.
There really isn't a good reason to pass on this settlement benefit.
UPDATE: Call it "postus-interruptus," but I left out the last, crucial piece of information, where to submit a claim. To submit a claim, visit the web site www.listclassaction.com, or call, toll-free, (866) 416-3470.
The Complex Litigator reports on developments in related areas of class action and complex litigation. It is a resource for legal professionals to use as a tool for examining different viewpoints related to changing legal precedent. H. Scott Leviant is the editor-in-chief and primary author of The Complex Litigator.
Code of Civil Procedure section 425.16 Motions to Strike provide ample opportunity for complex legal issues. In 
The Complex Litigator turns 100 today, just in time to celebrate our nation's birth. But in all seriousness, thanks to everyone that has supported this new blog, visited this blog, commented about it, complimented it, and passed it on to colleagues. I may catch my breath over the long, holiday weekend, then it's right back on the road to 200.
