Category Archive: Court Reporters

Attorneys Should Not Share Login Credentials With Vendors, Courts Urge

 

 Earlier this year, U.S. federal courts sent notices to attorneys across the country urging them not to share login credentials with their vendors. The concern is that vendors could have access to the attorneys’ confidential information. Accordingly, courts have asked lawyers across the nation to exercise caution when providing login credentials to a provider in order to grant them the ability to manage files. This advice coming from federal courts is also a warning to those attorneys who may be sharing login credentials to vendors at the state level.

Court Notices

 Numerous federal district courts and bankruptcy courts sent notices out to attorneys regarding these privacy issues. While each message varied, the general warning was the same: Beware when providing login credentials with docket service vendors, as there is a risk of giving them access to sealed or confidential information. Since more and more courts across the United States are using e-filing and other online systems, and many lack the ability to integrate software with the court’s systems, the use of third-party vendors is appealing. While doing so may take a load off of staff, consideration of possible rule and ethics violations should not be looked over. This concern is especially true considering the position taken by federal courts across the nation, with state courts likely to follow.

There are, however, other concerns beyond the sharing of confidential information with third-party vendor include about which attorneys should be concerned.

Other Issues

For one, errors can happen when uploading documents into the court’s docketing system. If the information uploaded to the court e-filing system be incorrect or inaccurate it is not as simple a task as hitting delete to get rid of the information. Indeed, once a document has been uploaded into the court’s docketing system it becomes part of the court’s records. In order to remove the misinformation from the court’s records, a motion to strike must be filed, paid for, and approved by the court. If a third-party vendor uploads incorrect information into the court’s system, the ramifications can be significant if that error goes unnoticed until someone else sees it, like the presiding judge or opposing counsel.

Another real concern is liability. This is because any information provided or entered into the court’s system under a lawyer’s credentials, irrespective of who actually entered and/or uploaded this information, is the ultimate responsibility of that attorney. Simply put, if a document is uploaded into the court’s system and personal identifying or other confidential information has not been redacted, the attorney is responsible for that disclosure. For this reason, the ability to upload and edit documents should be in the hands of very few and trusted individuals.

No matter what you or your law firm decides to do, be sure to protect both the attorneys and clients when handling confidential information.

 

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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.

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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.

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SCOTUS May Hear LGBTQ Discrimination Cases This Term

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.

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