Atlanta Law

It is no surprise to litigators in Georgia and across the country that unguarded messages are often sent by people that later come back to damage their cases. For this reason, discovery of these damaging messages are a top priority in civil lawsuits. Of note, people tend to post intimate information on their social media pages. For this reason, social media has become a particular target in civil litigation and lawyers can try to go after those of opposing parties and witnesses in two ways — through formal discovery procedures or self help.

Seeking Social Media Content Through Formal Discovery

Courts across the country have held that social media providers (think FaceBook, Instagram, Twitter, and LinkedIn, among others) are barred under the federal Stored Communications Act (SCA) from responding to civil subpoenas requesting social media content. That being said, some courts have ordered the opposing party to consent to the social media company’s disclosure agreement and have a consensual request sent to the provider. Without this workaround, social media content is only discoverable from the individuals who posted or received the information.

Notably, restricted social media content is neither private nor privileged in a legal sense, and those who delete or destroy accounts during litigation to avoid discovery have faced sanctions for spoliation of evidence. That being said, courts are hesitant to allow broad requests through all of a person’s private social  media content. Generally, discovery of social media content is allowed when the content directly sheds light on the disputed facts in the underlying lawsuit; if needed, the discovery can be subject to a protective order.

Using Self-Help to Access Social Media Content

It is true that there is no specific ethical rule that prohibits lawyers from looking online at publicly available social media content of opposing parties or witnesses. That being said, seeking private social media content that has been restricted to a limited audience can result in issues. An attorney can ask a friend of the opposing party or witness — meaning, someone who has been granted online access to the private content — to voluntarily share the information. This can not be done through misrepresentation, trickery, or any other unethical methods, though. Attorneys should not ask staff to engage in any activity that would be prohibited if the attorney were conducting it him or herself. Indeed, unauthorized access to private social media content may result in a claim under federal law — specifically, the SCA or Computer Fraud & Abuse Act (CFAA) or applicable state law.

Several new laws have gone into effect this year in Georgia. According to the Atlanta Journal-Constitution, some grant more rights to victims of crime, others expand insurance coverage to include autism services, and still others impose sales taxes on internet purchases. The laws received approval from the Georgia Assembly last spring and were later signed by Gov. Nathan Deal. Below are details on some of the new laws that are on the books in Georgia this year.

Newly Effective Laws

Marsy’s Law: An amendment to Georgia’s Constitution, this law was approved by 81% of the voters in the November general election. Marsy’s Law requires crime victims to receive notification prior to hearings in cases involving defendants who have been accused of harming them. While state laws already impose this requirement, these rights are now embedded in the state constitution.

Marsy’s Law is named after the late Marsy Nicholas, a college student who was stalked and killed by her ex-boyfriend in the early 1980s. One week after her murder, the ex-boyfriend, who was released on bail and Marsy’s family was unaware, confronted her mother and brother in a grocery store.

Sales Tax: As of 2019, many online retailers will begin to charge sales tax on purchases made by Georgia customers. Despite large companies like Amazon already having charged sales tax for years, many other online businesses have not. Now, a Georgia buyer will have to pay the state’s 4% tax along with local taxes – whether they buy at a brick-and-mortar or on the internet. Last June, the Supreme Court of the United States (SCOTUS) held that Georgia and other states can collect sales tax for purchases made online; the ruling overturned a 25-year-old decision that prevented state governments from enforcing sales tax unless the company had a physical, brick-and-mortar presence in that state.

Insurance Coverage: A third law increases coverage for autism-related services beyond the age of 6. Now, state law mandates insurance companies provide up to $35,000 of behavioral therapy coverage per year for children up to the age of 20. Prior law limited coverage to $30,000.

Other important changes in Georgia’s laws that go into effect in 2019 include a sales tax exemption on equipment for data centers, allowing Georgia-licensed pharmacists to order prescription drugs for patients from anywhere in the U.S., and a voter-approved tax cut for timberland owners.

Stay in the Know

The law is constantly evolving, and Georgia state law is no exception to this rule. Be sure to stay up to date with changes in the law as well as any cases that may create more nuanced interpretations of laws already on the books.

The highest court in the land may soon decide whether it will hear a trio of cases focused on the exact same issue. The cases – R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, Altitude Express, Inc. v. Zarda, and Bostock v. Clayton County, Georgia – were set for review at the SCOTUS’s first January conference but were not addressed. They have been relisted for its next conference, and will decide whether or not to grant certiorari.  All three of these cases raise the legal question as to whether or not LGBTQ people are protected by the Civil Rights Act of 1964.

Title VII

Title VII of the Civil Rights Act of 1964 (Title VII) is a federal law that makes it illegal for employers to discriminate against employees on the basis of sex, race, color, national origin, and religion. This law generally applies to employers with 15 or more employees and includes federal, state, and local government employers. Moreover, Title VII also applies to private and public universities and colleges, labor organizations, and employment agencies. Title VII prohibits discrimination based on those five classes in any aspect of employment. This includes hiring and firing; recruitment; compensation; testing; fringe benefits; transfer, promotion, layoff, or recall; pay, retirement plans, and disability leave; compensation, assignment, or classification; job advertisements; use of company facilities; training and apprenticeship programs; and other terms and conditions of employment.

The Cases

In Harris Funeral Homes, the SCOTUS will need to determine whether the 6th U.S. Circuit Court of Appeals correctly held that a funeral director unlawfully discriminated against a transgender woman by firing the employee after she began transitioning. In Bostock, the Court must decide if a gay man employed by Clayton County was unlawfully fired after his supervisors learned about his sexual orientation and that he played on a recreational softball team for LGBT individuals and has a claim for wrongful termination. In Zarda, the SCOTUS is tasked with determining whether the 2nd U.S. Circuit Court of Appeals was correct in determining that the firing of a now-deceased skydiving instructor after some clients and staff expressed discomfort because he was gay.

The Impact

If the SCOTUS decides it will review this trio of cases at any point before or during its session, the final decision will have a far-reaching impact on the future of LGBTQ rights. Should the SCOTUS determine that sexual orientation and/or gender identity is not protected under Title VII, then state and federal lawmakers will be tasked with amending or passing laws that explicitly provide these protections. If the SCOTUS holds that gender identity and sexual orientation do fall under Title VII, federal law will provide protections for the LGBTQ community across the country.

The Eleventh Circuit Court of Appeals recently ruled that legal research company Fastcase can bring a copyright lawsuit against its rival, Casemaker. Casemaker has claimed control over the state of Georgia’s administrative regulations. The Atlanta-based Court of Appeals ruled earlier this month on the matter.

The Court of Appeals’ Decision

The appeal originated from two prior lawsuits brought by Fastcase against Casemaker that were unsuccessful. Both of the prior cases were dismissed. The unanimous panel of judges for the 11th Circuit found that the most recent case, which was filed in February 2017, was wrongly dismissed by the lower court. The U.S. District court dismissed the February 2017 case, without prejudice, for lack of jurisdiction ruling the claims did not present a cause of action under federal law and also did not meet the $75,000 amount in controversy requirement. The 11th Circuit Court of Appeals disagreed on both issues and found there was jurisdiction, remanding the case back to the district court.

Remand to the District Court

Now, with this procedural win, Fastcase can go back to the district court and have the case heard and decided on its merits. The district court will decide whether a private company, Casemaker, can claim copyrights to public law. At issue in the case is an agreement that Casemaker entered into with Georgia’s secretary of state. The agreement gives Casemaker exclusive publishing rights to the state’s regulations. Beyond publishing rights, however, the agreement also gives Casemaker the ability to license the content (i.e., state regulations) to others for a fee.

The decision comes right after another, separate, recent 11th Circuit ruling that held Georgia’s official annotated state code is not copyrightable. The Court of Appeals ruled that the law belongs in the public domain. In that case, the 11th Circuit unanimously reversed an Atlanta federal judge’s ruling that open law advocate Carl Malamud violated copyright law by putting up a free version of Georgia’s annotated state code on his website, PublicResoruce.Org, according to an ABA Journal article. In its ruling, the Court of Appeals held the annotations carry the weight of the law. Historically, law and annotations have had clear distinctions under the law. Law is not copyrightable because it belongs to the public while annotations can be, if created by private party. In the PublicResource case, the line was more blurred because the annotations in Georgia’s state code were prepared by LexisNexis but considered part of the official code.