Certified Georgia Court Reporters

Statute of Limitation versus Statute of Repose

Statute of Limitation versus Statute of Repose

Both statutes of limitations and statutes of repose are state laws that govern the time limits allowable under the law for a plaintiff to file a civil lawsuit. There are, however, a few key differences that every attorney should know.

Statute of Limitations

A statute of limitations is the time limit that a state places on a plaintiff’s right to seek a legal remedy by filing a lawsuit after suffering some type of harm. These time frames are generally expressed in years and the deadlines set often depend upon the type of case that is being filed in court. Of note, once the statute of limitations deadline has passed, the case is forever barred. There are two different types of statutes of limitations — those that apply to criminal cases and those that apply to civil cases. Most statutes of limitations apply to civil cases because most crimes, except for petty crimes or misdemeanors, do not have statutes of limitations.

Not only do statutes of limitations have two types, but claims are subject to two different statutes of limitations depending on the court where the case is filed. There are federal statutes of limitations for federal law-governed cases, as well as state statutes of limitations for state law-governed cases. Generally speaking, most state-imposed statutes of limitations range from one to six years. Common statutes of limitations in civil cases include breach of contract, debts, personal injury, libel or slander, property damage, as well as fraud and misrepresentation, to name a few.

Statutes of Repose

 Like a statute of limitations, which sets the time limit a plaintiff can file a lawsuit from the date of the incident, a statute of repose terminates certain legal rights if they are not acted on by a specific deadline. The deadline could be based on the passage of time or the occurrence of a specific event that itself does not cause someone harm or does not give rise to a lawsuit. Generally, statutes of repose apply to specific types of cases that are injury-related. Common cases in which statutes of repose apply include medical malpractice, construction defects, and product liability.

Know Your Deadlines

 If you are handling a lawsuit for a client, be sure to make yourself aware of statutes of limitations and statutes that apply to the case. Each state has its own statutes, so legal research is key.

 

 

11th Circuit Allows Dentist to Pursue Infringement Case of Before and After Photos  

The American Bar Association (ABA) Journal reports a Florida-based dentist can pursue intellectual property rights of the before-and-after photos of his cosmetic dentistry patients after a federal appeals court reversed a trial court’s decision. The Atlanta-based 11th United States Circuit Court of Appeals reversed a lower court’s decision tossing out a Florida dentist’s claim to establish his before-and-after smile photos of his dental patients had enough originality to get copyright protection. The unpublished May 1st per curiam decision gives the Boca Raton dentist, Dr. Mitchell Pohl, the ability to seek intellectual property rights on those photos of his cosmetic dentistry work, which are displayed on his website.

 

The Case

 

Dr. Pohl originally sued after a company named Officite used the dentist’s 2005 photo of a patient’s before-and-after images. Officite used the photos on websites that promoted other dentists’ practices. Last summer, United States District Judge Mark Walker held the photos in question did not have enough “creative spark to merit copyright protection.

 

The 11th Circuit Court of Appeals disagreed, holding Judge Walker failed to acknowledge some evidence or originality that favored Dr. Pohl’s position. The 11th Circuit reasoned that Dr. Pohl took the before photos when the patient was in the dental chair while the after photos included a photography screen, close-up photos, and under direction to look at the camera and smile. The 11th Circuit highlighted that the United States Supreme Court has set a low bar when it comes to originality; it only requires some slight – or minimal – degree of creativity. When the court looked at the evidence in the light most favorable to Dr. Pohl, it found there was enough for him to proceed with the case. This was because the court found Dr. Pohl had a specific intention on how he wanted the photo to look. Dr. Pohl’s attorney, according to the ABA Bar Journal report, stated he will ask the lower court to rule on the issue of copyright infringement.

 

The Bigger Picture

 

The lower court’s decision to toss Dr. Pohl’s copyright infringement claim out last year could have had the potential to disrupt long-standing copyright protection as it has historically been applied to photographs. The 11th Circuit Court of Appeals’ reversal clearly shows the court is not veering from precedent that sets a low bar when it comes to determining originality in this area of the law. To be sure, the input of the author must be factored in when determining originality in intellectual property law. Notwithstanding, the 11th Circuit’s decision also makes it clear that the use of a photograph is not enough to determine whether or not the image is sufficiently original to merit copyright protection.

Social Media can Affect Civil Litigation in Georgia

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.

New Georgia Laws in Effect in 2019

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.