Depositions

Things to Consider When Deposing an International Witness

Deposing a witness is a headache. There is coordination, fees, preparation, and numerous other things to consider. Deposing an international witness can be even worse. In addition to the standard procedures you have to undertake, there are other things to consider as well. What are the internal laws of the witness’s home country? Do you need an interpreter? Must you first submit a request through the Hague Evidence Convention?

While difficult, international depositions are by no means impossible. Proper preparation, like every other stage of litigation, is the key.

In addition, here are some helpful things to consider:

  • What local laws are there where the witness is?
  • Do you need a visa for you and the court reporter to perform the work in the foreign country?
  • What oath requirements are there?
  • Do you have to make travel arrangements for a diplomatic officer from a consulate?
  • Can you compel testimony if the witness is unwilling?
  • How can you reserve a location? Can this be done by video-conference?

Some countries strictly forbid pre-trial discovery, while others allow it in limited circumstances. Further, if the country is a member of the Hague Convention, that adds another layer of difficulty.

Certain processes can be used to get evidence without a deposition. Things such as letters rogatory and letters of request can be used. Thankfully, if you only need documentation, this is a much easier procedure. But, they can be time consuming and expensive.

However, you can tailor requests to your needs. It is important to talk to an expert in this area to determine what is right for your situation. Preemptively, the client should be warned that a substantial expense is forthcoming. Finally, be careful to not go on a fishing expedition.

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.

 

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.

Eleventh Circuit Rules Media Companies are Subject to Georgia’s Anti-SLAPP Statute

The Atlanta-based 11th Circuit Court of Appeals rejected how CNN and other medial companies demanded the special dismissal provision found in Georgia’s anti-SLAPP statute in a defamation case. The loss of this important appeal will – at the minimum – make it easier to file suit against the media in federal court particularly in Alabama, Florida, and Georgia. CNN is headquartered in Atlanta, Ga.

 

The Underlying Case

 

The appeal to the Eleventh Circuit is the result of several reports on Anderson Cooper 360 in June 2015 on the infant mortality rate for open-heart surgery at St. Mary’s Medical Center – a West Palm Beach, FL hospital. The show claimed St. Mary’s death rates were three times the national average. The reporting sparked defamation lawsuits from the former chief executive at the hospital who was forced to resign as a result of CNN’s report. The executive claimed that CNN made an unfair comparison of hospitals that conduct both open-heart and closed-heart surgeries which, had it been properly made, would have adjusted for risk and changed the death rates.

 

CNN argued that the plaintiff could not meet the “of and concerning” standard required by a defamation suit because executive was not mentioned by name in the series. CNN also argued an “academic” disagreement that the methodology of how to calculate the mortality rates is a non-actionable opinion. These arguments, however, were placed on the back burner as a result of the standard that the Georgia federal judge must decide whether or not the case should be dismissed. Like other states, Georgia has tried to reduce frivolous First Amendment lawsuits by passing an anti-SLAPP statute. SLAPP stands for Strategic Lawsuits Against Public Participation. Under the statute, the plaintiff bears a higher evidentiary burden above and beyond those imposed by the federal rules of civil procedure. Accordingly, the 11th Circuit held the SLAPP statute should not apply. Notably, other federal circuits around the country – including the First, Second, Fifth, and Ninth – have ruled that state SLAPP laws should apply in federal courts.

 

Defamation Explained

 

Defamation of character is a term that encompasses any statement that hurts another’s reputation. When this happens in writing, it is referred to as “libel”; when it occurs in verbal form, it is referred to as “slander.” While defamation is not a crime, it is a civil wrong – or a tort. An individual who has been defamed has a private right of action to sue the person (or entity) who did the defaming for monetary damages.

 

Nevada’s law that governs defamation tries to balance two competing interests: People should be able to speak freely without fear of litigation over each mistake, insult, or disagreement, while a person’s life should not be ruined by lies that are told about them. While defamation is governed by state law, and varies from state to state, a victim of defamation must establish that the statement was published, is false, was injurious, and is unprivileged in order to succeed in a defamation lawsuit. Because the public has the right to criticize them, public officials have less protection from defamation. In addition to proving the four elements previously mentioned, a public official must also prove the defendant acted wit