Category Archives: Litigation

Facebook Forced To Turn Over Account Info, Photos, and Conversations

The New York Court of Appeals, its highest state court, approved in a 5-1 decision a search warrant that forces Facebook to turn over material on 381 accounts including account information, private photos, and conversations.  This ruling is based significantly on New York law which the court interpreted to mean search warrants issued by judges cannot be appealed to a higher court and the proper venue for challenging search warrants is during a pretrial hearing when a party argues the search warrant is an illegal search.

Read more about this case in this New York Times article here.  The underlying case deals with disability fraud and the Brennan Center provides a concise summary, along with its amicus brief, on its website available here.

One could argue that this opens the door to New York search warrants giving prosecutors access to users’ data on other social networking sites.

The full slip opinion is available here.

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Microsoft Sues DOJ

In order to sue the Department of Justice, Microsoft has brought out the big guns by hiring law firms Covington and Burling LLP, where partner James Garland used to work for former Attorney General Eric Holder, and Davis Wright Tremaine LLP.  Yesterday, Microsoft’s complaint was filed in the Western District Court of Washington State and the complaint is available on the Wall Street Journal website here.  The complaint is also available on Pacer, but the Wall Street Journal has the free version.

In the past, the U.S. government has requested information about certain users from Microsoft, presumably when warranted Microsoft complied with the production of information, and then the U.S. government could temporarily bar Microsoft from telling its users about the request for data.  Under 18 U.S.C. Section 2705, a governmental entity, with a court order, may delay notification to customers for a period not exceeding 90 days if the government has reason to believe that the notification would result in adverse results.  So, a customer would not be notified that a provider, like Microsoft, supplied information to a governmental authority until well after the production of information.  Adverse results include endangering the life or physical safety of an individual, flight from prosecution, destruction of evidence, tampering with evidence, intimidation of a potential witness, or otherwise seriously jeopardizing an investigation or unduly delaying trial.

Microsoft argues that this is unlawful and that tech companies should be allowed to tell their users when their cloud database and private information has been turned over to the government.  The U.S. government may argue that the disclosure to users would compromise an investigation.  However, Microsoft asserts that the U.S. government’s behavior is a violation of the Fourth Amendment.  But, is it?

This lawsuit is no easy feat.  It can be difficult to sue the U.S. government due to sovereign immunity issues.  Furthermore, the lawsuit boils down to a fundamental right to privacy argument that seems almost basic and may merit standard Fourth Amendment treatment regardless of all the discussion about cloud computing and the digital age.

Under F.R.C.P. 12, a U.S. governmental agency has 60 days from when they were served to file an answer.  It will be interesting to see who from the DOJ is assigned to the case and what the DOJ’s answer will be.

Furthermore, this case is not likely to settle.  Rather than Microsoft’s typical way of hiring lobbyists to change the law through Congress, it looks like Microsoft is using the courts and this lawsuit to change Fourth Amendment law.  Read more about this new case in this Wall Street Journal article here.

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Massachusetts HomeCorps Program

I recently rediscovered this article in the National Consumer Law Center’s Consumer Impact Newsletter about the early stages of HomeCorps.  The article is from the Spring 2013 newsletter, and on page 8, describes the Massachusetts HomeCorps Program as a “small battalion [of legal services attorneys that] has been deployed to stop foreclosures in their tracks.”

Starting in 2012, I was one of the 18 attorneys hired to advocate for homeowners, tenants, and consumers facing foreclosure-related issues.  We are housed in legal aid agencies across the state of Massachusetts with cases from various counties.  We advocate on behalf of our clients on a vast range issues like housing, consumer rights, debt collection, mortgage issues, tax lien cases, property lien cases, and loan modification issues.

HomeCorps and legal services was one of the most fantastic, humbling, fulfilling, exciting, and challenging jobs that I have ever had.  I truly loved working with my colleagues and clients.  After three years with HomeCorps and legal aid, I have started the next chapter of my life and moved to Washington DC to pursue an LL.M. at the Georgetown University Law Center.

As the Massachusetts HomeCorps Program continues to grow with the National Consumer Law Center, the Massachusetts Legal Assistance Corporation, and the Massachusetts Attorney General’s Office, it will be interesting to see how it evolves and adapts to fit the needs of communities!

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The Justice Gap and Community Lawyering

The New York Times published an opinion piece on the Justice Gap today written by a non-profit leader, Theresa Amato.  The full article is available here.

I took our new, summer intern to court today and she was surprised by the number of pro se litigants in civil cases.  I told her it was not uncommon because a lot of people can not afford an attorney.  Hours later, I read this article and these particular lines stood out to me:

Throughout the country, millions of low-income people have no access to free or affordable lawyers, even for life-altering civil matters like child-custody disputes or home foreclosures, where legal representation really matters.  This “justice gap” is vast.

That being said:

To create the entire sector of sustainable, affordable legal service providers that the legal profession needs will take much more entrepreneurship. There’s no shortage of lawyers to bridge the justice gap. For the last four years, less than 60 percent of law-school graduates have found full-time jobs requiring a bar qualification… Without help, the drag of this [law school] debt makes it near-impossible for willing graduates to take lower-paying legal services jobs….We must help law students graduate without a ball and chain of debt. And we need to create jobs that let new graduates practice law either pro bono or “low bono” (cut-price) for clients who can’t afford most attorneys’ rates.

Lastly, the other section that stood out to me was when the author of the article talked about being seen as a lawyer.  She described the set up of her office.

[T]his was community lawyering on a lean budget. Our first office was below ground, with an old pink carpet. We cleaned up secondhand chairs from my high school and used my parents’ old kitchen table. My father painted, my stepdad provided accounting help and my mom answered the phones.

She also begged me to hang my diplomas on the wall. She worried that no one would believe I was a lawyer.

Too often, legal aid lawyers are mistaken as non-lawyers.  Either through popular television, media, or long-standing preconceived notions of the legal profession, when people think of lawyers they imagine a corporate lawyer in a glass office and finely-tailored suit.  Community lawyers do not fit this stereotype, but they are just as fierce and knowledgeable as corporate attorneys.  We, community lawyers, probably have better social work skills (I jest… sort of).

In short, as the author mentioned in her piece, contrary to regular market practices, the legal profession has a high need for lawyers, but not enough financial viability to sustain pro bono/low-income/public interest work.  Invest in legal aid!

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Emojis in Evidence and Testimonies

Because most people are sick and tired of dealing with the abundant amount of snow in Massachusetts, I wanted to post a non-snow related topic today.

Earlier, NPR released a three minute piece about the use of emojis and emoticons in evidence and witness testimonies in court.  Check out the broadcast and transcript here.  Attorneys argue that emoticons are “part of the evidence of a document” as described in this New York Times article about testimony in the Silk Road trial.  Courts in California and New York are recognizing these symbols as part of the conversation culture.  Emoticon meanings in trials is shifting away from the literal meaning of words and towards a more holistic and slang interpretation of a phrase with emojis.

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FTC’s Unanimous Vote Against Snapchat for Privacy Rights

To round out the year, the Federal Trade Commission (FTC) released their final order involving Snapchat. The unanimous vote, 5-0, reprimanded Snapchat for misrepresentation to consumers and orders changes to encompass more of user’s privacy rights. The FTC pointed out that Snapchat failed to fully disclose the amount of data it was collecting from its users. The full press release is available here. The charges against Snapchat are now settled.

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Lawyers Who Argue in front of the Supreme Court

On Christmas, the New York Times published an editorial about the select group of lawyers who practice and argue in front of the U.S. Supreme Court.  Here is an excerpt of the article:

“Those are the central findings of The Echo Chamber, a comprehensive analysis of about 10,300 petitions [of cases to be heard in front of the Supreme Court] filed by private attorneys between 2004 and 2012. Reuters found that the lawyer’s name on the brief was among the strongest predictors of whether the justices would take a case.

While the 66 lawyers Reuters identified represented less than one half of 1 percent of all lawyers who petitioned the court during that period, they were involved in 43 percent of the cases the justices heard.

That elite cohort is as homogeneous as it is powerful: 63 of the 66 lawyers were white, 58 were men, and 51 worked for firms with primarily corporate clients.

An even more elite group — eight lawyers — made almost one of every five arguments the court heard from private attorneys during those years. “

It was something I never considered, until now, about the practice.  The full New York Times article, titled “The Best Lawyers Money Can Buy” by The Editorial Board, is available here.

The original Echo Chamber article, titled “At America’s court of last resort, a handful of lawyers now dominates the docket” by Joan Biskupic, Janet Roberts, and John Shiffman, is available here.  The original article, published in earlier December 2014, shares some shocking figures:

“Typically, the Supreme Court agrees to hear just 5 percent of the petitions filed by private attorneys. It accepts 21 percent of the cases bearing the name of a leading advocate.

“They basically are just a step ahead of us in identifying the cases that we’ll take a look at,” said Justice Anthony Kennedy. “They are on the front lines and they apply the same standards” as the justices do.

Some scholars say reliance on the expert bar has made for a far more insular court. “We don’t want the justices to filter cases through advocates,” said Jenny Roberts, associate dean at American University’s law school. “If this is happening, delegating the discretion of cases to a sort of sub-Supreme Court when so much is at stake is troublesome. It’s fine if you trust and agree with those in control, but what happens when you don’t?””

Some Supreme Court food for thought.

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New Voir Dire Changes in MA State Courts

Starting in early 2015, the Massachusetts State Courts will be changing their voir dire procedures.  Governor Duval Patrick signed a bill into lawG.L. ch. 234, sec. 28, that will allow attorneys to question jurors in their jury trials.  A portion of the new statute reads:

Upon motion of either party, the court shall, or the parties or their attorneys may under the direction of the court, examine on oath a person who is called as a juror therein, to learn whether he is related to either party or has any interest in the case, or has expressed or formed an opinion, or is sensible of any bias or prejudice, therein; and the objecting party may introduce other competent evidence in support of the objection.

A standing order, with additional clarifying details, may be released in January or February of next year.  It will be interesting to see how Superior Court trial practices will develop with this new rule.

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What is a Photocopier? Dramatization

I am super excited and proud for my friend, Brett Weiner, who produced this short video for the New York Times Verbatim Op-Doc.  Weiner describes the clip as a “dramatization of transcripts from a legal deposition [where] a lawyer becomes embroiled in an absurd argument about the definition of a photocopier.”  You should check out this piece!  It is pretty funny and any legal guru can appreciate the nuances of language that is depicted in the video.  Here is the link to the article and clip.  If you are interested, you can follow Brett Weiner on Twitter @BrettBAW.

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Legal Aid Legislative Briefings at the Massachusetts State House

Earlier this week on Monday, February 10th, I spent the morning at the Massachusetts State House for the 13th Annual Civil Legal Aid Constituent Services Briefing.  Legal aid advocates from across the state spoke to leaders, aides, and state house staffers about issues that impact people.  Specifically, the Massachusetts Legal Assistance Corporation brought in attorneys to focus on unemployment, the impact of the American Care Act on health care, housing, foreclosures, homelessness, domestic violence, and government benefits.  I have included a few pictures from the morning below.

Weyonnoh Nelson-Davies, Mehda Makhlouf, and I answering questions at the Community Legal Aid table at the State House.

Weayonnoh Nelson-Davies, Mehda Makhlouf, and I answering questions at the Community Legal Aid table at the State House.

Mehda Makhlouf talking about Medicare, Medicaid, MassHealth, Commonwealth Connector, and other health care items.

Mehda Makhlouf talking about Medicare, Medicaid, MassHealth, Commonwealth Connector, and other health care items.

Marc Potvin, from Neighborhood Legal Services, informing others about foreclosure law.

Marc Potvin, from Neighborhood Legal Services, informing others about foreclosure law.

Weayonnoh Nelson-Davies speaking about government benefits.

Weayonnoh Nelson-Davies speaking about government benefits.

In addition to meeting legislative staffers from offices based out of Worcester and Hampden County, I met Christine Lee who is a reporter for Channel 22 News.  I would just like to note that she was a lawyer before she became a journalist.  Follow her on Twitter at @christinenews .

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