Graydon Head

Blog: Jack "Out of the Box"

Welcome to Jack "Out of the Box." This is a spin-off of the Firm's InfoLaw Newsletter, much like "CSI: Miami" is a spin-off from "CSI." Except without all the corpses. I plan to update the blog at least weekly. Really. It's not like when I used to promise my mom to clean my room once a week. I'm more mature now. And of course, the InfoLaw Newsletter will continue every two weeks. The blog will feature shorter pieces, and ideally, reader feedback. Should be fun. Oh yeah, and informative.

  • Federal Court Delivers Brushback to Roger Clemens

    Nov 20, 2014

    A federal judge in New York is threatening to impose sanctions on former major league Roger Clemens for Clemens’ “continued and repeated abuse of the discovery process.'' This is a little worse than being tossed from a game by an umpire.

    Clemens is the defendant in a libel suit filed by Clemens’ former trainer Brian McNamee. McNamee claims Clemens libeled him when he accused McNamee of lying and manufacturing evidence in connection with McNamee’s claims that Clemens used performance enhancing drugs. Clemens is apparently not producing documents McNamee has requested in the discovery process. 

    While it doesn’t make for much drama, in most civil trials, there aren’t a lot of surprises.  A plaintiff files the lawsuit, and is then entitled to obtain documents and other information from the defendant to help prove the case. The defendant can object to the requests, but for the most part, judges allow the parties (the defendant can request information from the plaintiff too) to make broad requests. The process can take months or years in a complex trial.

    As Clemens is discovering, the courtroom and the diamond are different environments.  And Clemens has a little less control over his fate than when he was standing on the mound.

    Of course, the judge better be careful too. You never know what Clemens might throw at him.

    Go comment!
  • Rap Sheet

    Nov 19, 2014
    This is awesome.  On a host of levels:

    First, she’s pretty good. Second, the gestures are phenomenal. Third, her reaction to being recorded is priceless. But finally, and most importantly, here’s what her husband commented when he posted the clip:

    My wife is THE most beautiful human being I know and I absolutely adore the moments I get to watch her being herself. Don't be shy people, say you love your loved ones, treasure the little moments and don't worry if people are judging you!

    Amen to that. 

    But, of course, the lawyer in me can’t leave it on that sentimental note. And the media lawyer in me wonders, what if this couple had a less friendly relationship. Would the rapping wife have a legal claim against her husband? Well, here comes the answer that makes clients everywhere cringe. It depends. In 12 states, a party to a conversation can record it only if the recorded party consents. These states are called, unsurprisingly, “all party consent” states. So, if the couple resides in one of those states, the wife may have a claim.

    But 38 states, D.C.  and under the U.S. Code, a party to a conversation is allowed to tape it without telling the other party.  These states are called “single party consent” states.  So, if the couple reside in one of those states, the wife may not have a claim.  The only issue, I suppose, is whether her rap song would be deemed a “conversation” and whether the husband was a party to it in any event. 

    If any of my media law friends are reading, I’d love your input!

    Go comment!
  • It Goes With The Bench

    Nov 13, 2014

    I was thinking about this movie today, mainly for this quote:

    Billy Joe 'Budger' Cahill: You're bleeding again, Pa.

    J.D. Cahill: Yeah, I guess it goes with the badge. You got a kerchief?

    The point? If you accept a job some burdens come along with it. So what made me think about that quote? This USA Today article. It’s a piece about what may be the most powerful institution in our government – The Supreme Court – is the least accessible. And probably the least accountable. I’ve blogged about the Court’s inexcusable refusal to broadcast its oral arguments.

    And while that’s an important point, there are other pressing issues. Such as, for example, why shouldn’t the justices specify why they recuse themselves from cases? Why shouldn’t their financial disclosures be filed online? Intrusive? Maybe. But it seems like a small price to pay for lifetime tenure and pretty much limitless power. Not to mention summers off. 

    Of course, just this week, Justice Alito

    is speaking to the uber conservative Federalist Society. And guess what? He’s insisted that his speech be closed to all broadcast media. Which is actually a compromise – he originally wanted all press excluded. Now he has deigned to allow “pen and paper” media (although in my experience, most reporters now have iPads). I don’t know if the Justice is a fan of the Duke. But he could take a lesson. And not be so camera shy!   

    Go comment!
  • Elephant Stampede

    Nov 07, 2014

    I’m not saying this is exactly what it looks like in Washington right now,

    but given the Republican control of the House and Senate, there are bound to be some consequences. One area that might pique the interest of the re-constituted Congress is the Federal Trade Commission’s data privacy regulation. I’ve written about this before. Congress has never specifically given the FTC regulatory power in the data privacy world, but that has not stopped the FTC from filling the vacuum. 

    The FTC believes its power to regulate comes from its statutory authority to investigate unfair and deceptive trade practices. So companies that don’t abide by their privacy policies or who don’t use state of the art techniques to protect customer data have found themselves in the FTC’s cross hairs. 

    Congressman Darrell Issa, who seems to head up a disproportionate number of investigations, is already on record opposing the FTC’s activity in this area. Now that the Senate has a majority of Republicans, as well as the various committee chairs, it will be interesting to see if there is any action on this topic. Stand by.  

    Go comment!
  • Maybe The Lawyers Got Out Of The Way

    Nov 04, 2014
    I was struck by this post and this video in the wake of the Virgin Galactic tragedy:

    The video is Richard Branson, the head of Virgin, addressing the media in a concise, but empathetic manner about the very sad event. The post from Michele Lutz suggests that Branson intuitively acted like a crisis management specialist. And her post provides several tips for other leaders to follow.

    And it occurred to me – how often do we lawyers muck that process up?  In his statement, Branson admitted “we fell short.” He acknowledged Virgin needs to learn “from what went wrong.” 

    As I listened, the lawyer in me started reflexively thinking about “admissions against interest” and the risk that some plaintiff’s lawyer will cue that video up for a jury one of these days. 

    And those are valid concerns, but where Branson gets it right I think is in not giving into those concerns to the point where his statement is some meaningless plate of pablum. The lesson? For us lawyers let’s realize that our legal advice is one piece of the puzzle. Let’s not let it trump compassion and humility.

    Go comment!
  • They Teach Civics In Tennessee, Right?

    Oct 31, 2014

    The Williamson Tennessee County Board of Education has adopted an “Acceptable Use, Media Release and Internet Safety Procedures” policy. It appears to be part of an effort to control student access to inappropriate online content.

    That’s well and good, but according to a piece in Wired the policy may violate the First and Fourth Amendments. In fact, the Tennessee chapter of the ACLU and the Electronic Frontier Foundation have sent a letter to the school board registering their concerns. Among those concerns is the part of the policy that allows school officials to collect and examine any device a student brings to school “for any... school related purpose.”  In other words, “because we feel like it.” 

    That seems to conflict with court decisions which have permitted searches when there are reasonable grounds to suspect a student has broken the law or school rules. And even then, the search has to be “narrowly tailored.” The Tennessee policy is not narrowly tailored by any stretch. 

    I was having dinner last night and talking about going to a grade school and being taught by nuns. 

    And while we had no electronic devices, we also had no First Amendment protections. So, not only could Sister demand we empty our pockets, she could whack our knuckles if we were slow about it. But this was a private school, and that was the choice our parents made.

    Public school students, however, have constitutional rights, and they don’t give them up when they walk into the school building (although the Tennessee policy also controls off campus internet use). The good people on the Williamson County School Board may want to take a look at the Constitution and re-think this policy. 

    I know there are politicians in Tennessee who purport to support the Constitution:

    But maybe instead of tilting at windmills, and attacking policies that are constitutional, they could go after real violations. Like this one.  

    Go comment!
  • FTC/FCC Tag Teaming

    Oct 28, 2014

    I spent an inordinate amount of time as a kid watching professional wrestling. It looked like this:

    In my defense, there were only three channels, and Bugs Bunny wasn’t always on. But one of the things I distinctly remember were the tag team matches. These involved teams of two wrestlers who took turns in the ring. They had to tag each other to switch.  Of course, this being pro wrestling, the rules inevitably got bent, and more often than not, two wrestlers wound up pile driving the hapless victim. Great sportsmanship? No.  Great television. Of course.

    And those vintage memories of fat guys in Speedos were more prominent in my mind than normal today as I read this press release from the Federal Communications Commission. According to the FCC, it plans to fine TerraCom, Inc. and YourTel America, Inc. $10 million. Their sin? The companies failed to safeguard personally identifiable information they gathered from customers. The companies stored Social Security numbers, names, addresses, driver’s licenses and other sensitive customer information on “unprotected Internet servers that anyone in the world could access.”    

    The companies stated in their privacy policies that they had in place “technology and security features to safeguard the privacy of... customer specific information from unauthorized access or improper use.” But those promises don’t jive with reality – specifically putting the information on servers available to the world.

    In the FCC’s view, that conduct violates the companies’ statutory duty under the Federal Communications Act to safeguard the data, but also constitutes an “unjust and unreasonable practice.” And that’s where the tag teaming comes into the picture. The Federal Trade Commission has also gone after companies who don’t live up to privacy promises on the theory that the failure to do so constitutes and unfair and deceptive practice under the Federal Trade Commission Act. The FCC is apparently adopting a similar approach.

    It is of course worth noting that Congress has issued no statutory authorization for the FTC or the FCC to be privacy police. And the Wyndham Hotel chain is  in federal court fighting the FTC’s ability to regulate in this area. Don’t be surprised if there is a similar challenge to the FCC’s jurisdiction.  After all, the tag team concept works both ways!

    Go comment!
  • Helicopter Parents And Social Media

    Oct 22, 2014

    I was a guest on the Scott Sloan show on WLW 700 yesterday. We talked about a recent case in Georgia involving a 13 year old cyber bully named Dustin. This kid decided it would be fun to create a false Facebook profile of a fellow seventh grade girl. Dustin knew what he was doing. He posed as the classmate to create a new Facebook account, using a Yahoo e-mail address. For the profile photo, he used a photo that he had taken of the classmate at school, after altering it with a “Fat Face” application. 

    But that was just the start. Dustin added information to the unauthorized profile, which included racist viewpoints and a homosexual orientation. He also caused the phony person to issue invitations to become Facebook “Friends” to many of Alex’s classmates, teachers, and extended family members. Dustin continued to add information to the phony profile and caused the account to post status updates and comments on other users’ pages. Some of these postings were graphically sexual, racist or otherwise offensive and some falsely stated that Alex was on a medication regimen for mental health disorders and that she took illegal drugs.

    School officials soon discovered that Dustin and another student were behind the scheme. He was punished at school and sort of punished at home. His parents forbade him from seeing his friends after school for one week. But that’s pretty much it. Neither Dustin nor his parents did anything to get the false Facebook information taken down for nearly 11 months. Alex’s parents eventually filed a civil lawsuit for libel and infliction of emotional distress. They named Dustin’s parents as defendants. Shortly after Alex’s parents filed the lawsuit, the Facebook page finally came down.   

    Dustin’s parents filed a motion for summary judgment in the trial court and won. The court concluded the parents were not liable as a matter of law under the circumstances. But the Georgia Court of Appeals reversed that ruling. It held that once the parents were put on notice of the Facebook page, they had a duty to guard against the harm. The issue is foreseeability. If the parents could reasonably foresee that their child’s conduct might harm another person, they had a duty to prevent the harm. 

    In the Georgia appellate court’s view, there were issues of fact around that issue and so it sent the case back for a jury trial. On the radio we discussed what parents are supposed to do in a wired world. The answer is, I suppose, do your best. But once you discover your kid is a cyberbully, you are well advised to clean up the mess he made.  Sooner rather than (11 months) later. And on the front end, take this advice:

    Go comment!
  • Who Let The Dogs Out?

    Oct 21, 2014

    I have posted before about the untenable, hypocritical, condescending, undemocratic practice of the United States Supreme Court to prohibit video-taping oral arguments. Just for clarification, I am opposed to this practice. 

    But to date, my words have fallen on deaf ears. Surprisingly, Justice Scalia has not picked up the phone to discuss this matter with me. Justice Scalia, if you regularly read my blog, please, call me. I’ll make sure it goes right through!

    But if my well-reasoned and thoroughly researched legal arguments don’t do the trick, perhaps ridicule will do the trick. And for that, I defer to John Oliver:

    Come on Supreme Court, can’t you see you’re barking up the wrong tree on this issue?

    Go comment!
  • Body Cameras And The Public's Right To Know

    Oct 16, 2014

    Here’s an article posted today on about police body cameras. Cleveland police may be equipped with them as soon as next year. I suspect other cities around Ohio and the nation will follow suit. Which for me begs the question, will the footage be a public record? I think the answer is a no brainer. OF COURSE. One of the purposes of equipping cops with body cameras is to ensure accountability. And given that we as members of the public pay their salaries, the police need to be accountable ultimately to us.

    And to be clear. I like the police. I think 99% of the time they act in a responsible and professional manner. So, the overwhelming majority should welcome public accessibility. It will vindicate them in controversial situations. 

    And as for the 1% bad apples? I want to see what they’re up to and make sure they get disciplined appropriately. 

    The article refers to a decision from the Ohio 12th Appellate District that ruled Ohio Highway Patrol dash cam video footage was exempt from the Public Records Act as a confidential law enforcement record. This logic could lead to other courts concluding that body cam footage is confidential. That would be unfortunate for a host of reasons.

    First, the 12th District is just wrong. Dash cams and body cams don’t disclose any confidential information. They run continuously and record the officer stopping for donuts as well as pursuing a suspect. The Ohio Supreme Court has ruled conclusively that initial incident reports and 911 calls are not investigation reports. They may commence an investigation, but they are recorded before any investigation is under way. Body cameras are the same thing. 

    Second, federal appellate courts have ruled that the public has a First Amendment right to video tape police in action. It goes back to that whole accountability thing I mentioned earlier. So, if I have a First Amendment right to record the activity, it is by definition not confidential. And it seems logical to me that if the First Amendment lets me record, it probably lets me view what someone else has recorded as well.    

    Oh and one more thing about dash cam videos. They’re SO confidential, the Ohio Patrol routinely posts them on their own YouTube Channel: And yes, the sarcasm is intended
    Go comment!
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