On this week’s episode, Greg speaks the couple of words of French he learned on vacation.

Marlene talks about mentor/mentee relationships and Sheryl Sandberg’s discussion on how the #MeToo era places an external strain on promoting these relationships. Marlene touches on the three founders of Black Women Talk Tech, Esosa Ighodaro, Regina Gwynn, and Lauren Washington, as well as Sophia Amouruso and others on the importance of mentoring.

Continue Reading Podcast Episode 6 – Law Librarian Helps Streamline a Texas Court

Kate Martin, Law Library for the Circuit Court for Montgomery County, Maryland, is organizing an Access to Justice (A2J) Conference in Baltimore on March 21st. The conference is through the local law librarian chapter, LLAM, and anyone familiar with Kate should know that she tends to develop very strong programs that take on a life of their own (Martin established the Private Law Libraries Summit a few years ago.) More information on signing up for the conference will come in the next few weeks, but put a placeholder in your calendar for March 21st and get out to Maryland to enjoy the first day of Spring.

Kate describes the relationships between law librarians and A2J as “a core value of law librarians – and it is becoming more critical as professional legal assistance becomes more expensive and beyond the reach of even average, middle-class Americans.” Many of the public facing law libraries have seen the increase of self-represented litigants over the past decade, and Martin believes this trend will only continue to grow. However, she does not think that the responsibilities of A2J lie on the shoulders of court librarians alone. Just because you may be a firm librarian, Martin believes you,  too, can help with A2J issues.

“We’re especially targeting private law librarians by showing them a way to use A2J to raise their profile within their firms and support their firm’s pro bono efforts,” says Martin. “A2J will also offers a way to give back to the community.”

The conference is being marketed on the national level, and will be the first symposium on A2J that is completely organized for librarians. There will be several tracks covering A2J issues and hands-on sessions discussing and advising on the current issues. Martin already has speakers coming in from Alaska, Montana, Minnesota, Utah, and Georgia, with more lining up across the country to speak and join in on the discussion. The registration (I’ll post a follow-up when the official announcement goes out), will only cost $65, and the seminar will be held at the University of Baltimore during Spring Break, so you won’t even have to fight students as you make your way around the building.

In a news day full of law firm mergers, there is a smaller merger that just happened that will cause some adjustment for those of us that deal with court filings. CaseFileXpress and LexisNexis File & Serve were spun off and now are a brand new company called File & ServeXpress.

Here’s the announcement I just received:

Dear Valued CaseFileXpress Client,
We have exciting news to share with you!
Today, CaseFileXpress® and LexisNexis’ File & Serve® were acquired by a newly formed company, File & ServeXpress, becoming the leading provider of e-Filing and stand-alone e-Service solutions to the legal industry—servicing over 165,000 users across 275 jurisdictions and processing more than 45 million documents annually.

File & ServeXpress, based in Irving, Texas, will continue to offer e-Filing and e-Service solutions that fit all types and sizes of courts, cases and practice areas and universally compatible e-Filing systems that connect directly to existing court document and case management systems.
As a client of CaseFileXpress, you will receive the same delivery team and 24×7 support and service that we have provided for the last nine years. This transfer of ownership will have no impact to your account and all of the following will remain the same:

As we work to combine the two companies, our focus will be to continue implementing requests from clients including, but not limited to, technology improvements, access to more jurisdictions, additional service offerings, and expanded customer support. We will continue to communicate with you as changes occur.

Thank you for your business, and we look forward to continuing our relationship as your business partner.

Tamerlane Carter

Tamerlane Carter
File & ServeXpress

It seems that the upgrade to the new Texas.gov eFiling Portal didn’t exactly go as planned this weekend. After being shut down for the upgrade from 6PM on July 27th through 8AM July 30th, the upgrade caused a number of hick-ups to filings when it came online yesterday. The problems with the new system were so great, that it caused Texas.gov to shut down the upgrade and roll back to the previous system. Here’s an email alert from CaseFileXpress that went out this morning to its users:

To our Texas Filers:
This is important information regarding filing into Texas courts.
Based on the outage yesterday, Texas.gov has determined that a roll-back of the eFiling upgrade is necessary for eFiling business continuity. As requested by the State of Texas, CaseFileXpress has restored our prior system and confirmed system functionality and connectivity to the state’s eFiling portal.
Approximately 200 filings were submitted yesterday and are in various stages of the eFiling process. Please do not resubmit your filings unless we notify you otherwise. Texas.gov is working with the courts to ensure all filings submitted are being processed appropriately.
If you emailed an Appellate Court filing to us yesterday, please submit the filing through the eFiling system so it may be properly docketed. …
We apologize for any inconvenience you experienced yesterday, and we appreciate your patience throughout this transition. We will notify you when we receive a revised schedule with the new deployment date.…

 I think this gets filed under the category of “technology is great… when it works.”

I have to admit that I usually think that many of the articles that AALL puts out in its Law Library Journal tend to be too rigid and too academic in style, but the Summer 2011 issue is actually chock full of interesting articles ranging from Ron Wheeler’s Does WestlawNext Really Change Everything? to Gail M. Daily’s tribute to Earl C. Borgeson’s Ten Rules for Law Library Management. However, the article that is near and dear to my heart (and also mentions me a few times) is a joint effort from DALIC (Digital Access to Legal Information Committee) called, Universal Citation and the American Association of Law Libraries: A White Paper. With its introduction by Oklahoma Supreme Court Justice, Yvonne Kauger, this article rehashes the history of the Universal Citation effort in the State Court system of the United States.

As many of you know, I was knee-deep in the movement back in the late 1990’s and early 2000’s, and I have to say that it was probably the job that I loved the most because we all felt like we were doing something special, and that we were making a difference to the public we served. Although, it also felt good that we were snipping the strings of control that big legal publishers had on the core legal research materials… especially the silliness over Westlaw’s pinpoint citations and their claim that those were copyright protected and that no one could use those without paying a royalty to Westlaw first. I had visions in the late 90’s that every court in the nation would adopt this simple, yet so effective, method of vendor-neutral citation. After all, if a state like Oklahoma could do it, it seemed that any state could. Unfortunately, it seems that something happened in the early 2000’s that caused the movement to fail.

The promise, and subsequent failure is stated eloquently in the White Paper:

¶12 Unfortunately, the wave of citation reform crested in 1998. Courts in Arizona, Louisiana, Maine, Mississippi, Montana, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota, Tennessee, Utah, Vermont, Wisconsin, and Wyoming, as well as Guam, the Northern Mariana Islands, and the U.S. Court of Appeals for the Sixth Circuit, adopted elements of universal citation. However, no jurisdictions, other than Arkansas in 2009 and Illinois in 2011, have moved to do so since the early 1990s. The ABA has regularly reaffirmed its support for universal citation in a resolution, but no other major organization has joined AALL’s efforts with additional support.

While I was moderating a panel at this year’s AALL conference in Philadelphia, all of the emotion that I felt while building a vendor-neutral citation system, and making all of that information available to the members of the Oklahoma Bar, the citizens of Oklahoma, and to anyone else that needed access to the judicial decisions of the State of Oklahoma, came back to me in a rush. There are very few times that those within the legal community can make a true difference in how the public access justice, but this was one of those times. I told the audience that those states that didn’t jump on the band wagon of Universal Citation have let their citizens down, and continue to enable the legal publishing giants to control access to justice. In my opinion, the judicial leaders of those states did not stand up for the people they represent, and have shown a lack of leadership and vision found in the now 18 states that have adopted the system.

I also lashed out somewhat against AALL and its Citation Committee for planting a flag in the early 2000’s, claiming victory, and then moving on to other things. There should have been a major push by the organization to push adoption in other states, especially larger, more affluent states, like California, Texas and New York. I know that those states are difficult to deal with, and tend to not like changing the status quo of their legal systems, but the mission of Universal Citation was not accomplished, and as we can see now, the claim of victory was far too premature.

Can the idea of Universal Citation, free from the grasps of the legal publishers, be resurrected? I have to say that at this point in time, I really don’t know. It takes strong leadership on the state court level; it takes strong advocacy from the ABA, AALL and other organizations to push for reform, and; it will take outside help from the legal publishing community, especially non-Wexis vendors, to step up and help those states willing to take on such reform, just as the (pre-Wolters Kluwer) Loislaw people did for Oklahoma. That’s a lot of ships that have to adjust course in order to change the direction of the Universal Citation movement. It can be done, but it will take a great effort on many parts to breathe life back into such a worthwhile reform.

Read: Universal Citation and the American Association of Law Libraries: A White Paper

NOTE: Also take a look at the new effort from http://www.universalcitation.org — plus, a video of the meeting of this group at Rutgers last month is available at http://camlaw.rutgers.edu/av-request/10711/77aeade1b0

Big tip-o-the-hat to Courthouse News Service for following up on the class action suit brought by Texas resident Karen McPeters against Montgomery County’s (Texas) mandatory use of LexisNexis for electronic filing of court documents. We discussed the Federal class action lawsuit brought by McPeters back in April, but it appears that the Federal Judge was showing some doubt about the standing of the case in federal court on the issue of filing fees preventing due process or equal access to the law.
Cameron Langford at CNS gives a great “blow-by-blow” of the case, where McPeters equates the fee to a poll tax that is discriminatory to the public that can’t afford the fee… and essentially equivalent to a literacy test for those that are not computer literate enough to understand how to file document electronically. Those are interesting arguments, however, I did find one statement in the complaint that stood out for a much more practical reason. According to the complaint, LexisNexis charges over twice as much for filing over other e-filing services that serve Texas Courts.

Very interesting…(oh, and for you non-Texans… Bexar County is pronounced similarly to “Bear”… if you say Bex-ar County, they’ll know you’re not from around here.)

Here’s the synopsis of the complaint. It is definitely worth a read.

Seems that the issue of paying third-party vendors a fee to file documents in state courts has raised its head again – this time in Georgia. We covered this issue back in April when a claim was made against a Texas court that these types of fees were RICO violations. According to a Fulton County Daily report (paid service) and a Courthouse New Service report, a plaintiff was ‘locked out’ of the Lexis File and Serve service because the plaintiff’s counsel had allegedly not paid the service’s fees. The fees run from $7 to $12 per document and are paid directly to Lexis, and not the courts. Also according to the complaint, the Fulton County court apparently would only accept the electronic filing in this class-action case, and no paper documents would be accepted (supposedly getting around the $7 and $12 Lexis fees.)

In one of those arguments that fits the saying of “it may be true, but do you really want to use that as your defense?” Lexis’s attorney, William K. Whitner, said “The Georgia Supreme Court has repeatedly held that there is no constitutional right to access to the courts.”

This was swiftly met with a response from DeKalb Superior Court Judge Robert J. Castellani asking Whitner, “Did you just say there’s no right of access to the courts?”

Without skipping a beat, Whitner replied “No constitutional right… That’s the what the case law says; I’m not saying it’s right or wrong.”

Judge Castellani gave some sage advice to Whitner when he followed up with “I hope that’s not what your case rests on.”

There are a lot of issues that surround the idea that courts outsource their electronic filing. One of the things that seems to pop up in these cases is the fact that the plaintiffs and defendants are paying court fees directly to third party private vendors, and then the vendors are sending those fees on to the courts (after taking their cut.) I know that this is “logistically” a good way of doing things, but it does raise issues of people being excluded from the public court system because of money owed to a private company. Seems like it would be smarter for the courts to set their electronic fees in a way that builds the cost into the court fee, and not as a separate fee, then the court would pay the vendor a fee. That way, at least logistically, citizens would be failing to pay the court, not a private party. That would make the access to courts issue something that would then throw out the issue of private companies having a role in excluding citizens from the courts.

There have been a couple of very interesting opinions coming out of New York recently. I’ll lay out the decisions below, but my reading of these decisions tells me that if you’re a lawyer in New York, you should suggest to your clients that they shutdown their Facebook, MySpace, Twitter, or any other social media account immediately because chances are, the other side will be able to get access to these accounts if they ask.

Opinion 843 – Accessing Public Facebook and MySpace Information for use in trial.

The first is an ethics opinion from the New York State Bar Association (PDF) that asks if a lawyer may:

“view and access the Facebook or MySpace pages of a party other than his or her client in pending litigation in order to secure information about that party for use in the lawsuit, including impeachment material, if the lawyer does not “friend” the party and instead relies on public pages posted by the party that are accessible to all members in the network.”

Attorneys were still not clear whether looking and using information from a person’s Facebook, MySpace or other social media pages that were public violated the ethical rules of the state. Well, fear no longer my friend, and the Committee on Professional Ethics ruled that:

“A lawyer who represents a client in a pending litigation, and who has access to the Facebook or MySpace network used by another party in litigation, may access and review the public social network pages of that party to search for potential impeachment material. As long as the lawyer does not “friend” the other party or direct a third person to do so, accessing the social network pages of the party will not violate Rule 8.4 (prohibiting deceptive or misleading conduct), Rule 4.1 (prohibiting false statements of fact or law), or Rule 5.3(b)(1) (imposing responsibility on lawyers for unethical conduct by nonlawyers acting at their direction).”

Romano vs. Steelcase – Access to private and deleted Facebook and MySpace accounts

The second decision came from Judge Jeffrey Arlen Spinner of Suffolk County Supreme Court decision of Romano v. Steelecase (PDF). In this decision, the court granted the:

“Defendant access to Plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information”

In this case where the Plaintiff was asking for damages for personal injuries, the Defense was claiming that they had reason to believe that the Plaintiff posted pictures and information that showed she was not suffering from a loss of enjoyment of life. Not only did the Defendant want to access the private portions of the Plaintiff’s account, but they also wanted access to any deleted information.
Judge Spinner agreed ordered that the:

Plaintiff shall deliver to Counsel for Defendant STEELCASE a properly executed consent and authorization as may be required by the operators of Facebook and MySpace, permitting said Defendant to gain access to Plaintiff’s Facebook and MySpace records, including any records previously deleted or archived by said operators

Bottom line in New York (and possibly every place else in the United States): Expect everything you post on Facebook or MySpace to be considered public information by the courts, and don’t expect that your self-imposed privacy settings will protect you if you’re ever taken to court.

There was an interesting ruling out of the Eastern District of New York last month where a Defendant argued that data found on LinkedIn, Facebook and other social media sites prevents the Plaintiff from claiming Trade Secret protection on its Client Relationship database. In Sasqua Group, Inc. v. Courtney, [PDF], Sasqua Group’s owner, Christopher Tors found out that sometimes it isn’t a good idea to hire family members — at least not without making them sign a non-compete agreement first! It seems that Tors’ niece, Lori Courtney, decided to split off from the family business and start her own headhunting agency and ended up taking a few of Uncle Chris’ employees with her… oh, and she also took Uncle Chris’ client list with her and immediately started using that list to get those clients to come over to her new agency. Of course, Uncle Chris did the family thing and took his sweet niece to court.

Putting aside the fact that Uncle Chris didn’t have Niece Lori sign a non-compete or non-solicitation agreement, the court found that protection of this kind of information under the Uniform Trade Secrets Act (USTA) may not work in the 21st century where the information can be found in a matter of minutes using resources like LinkedIn.  Niece Lori stated in her argument that:

“virtually all personnel in the capital markets industry that Sasqua serves have their contact information on Bloomberg, LinkedIn, Facebook or other publicly available databases.” According to Courtney, the people who make up the financial services industry workforce, “including the Decision-Makers and other high level executives, typically change employers frequently . . .” and so “the contact information that a search firm may assemble in a database is almost immediately obsolete.” (see pg 7)

Apparently during the trial, Niece Lori even walked the judge through the process she used to find the information. It looks like the judge at trial and on appeal were so impressed by her competitive intelligence researching skills that the opinion goes on for about four pages describing all of the tricks of the trade that are used to find information on business executives using online paid databases and social media databases (starting on page 21 and going through 25).

Judge Tomlinson explained that the 20th Century way of gathering and protecting confidential client contact information may just not fly in the 21st Century. Tomlinson wrote:

The information in Sasqua’s database concerning the needs of its clients, their preferences, hiring practices, and business strategies, as well as Sasqua’s acquaintance with key decision-makers at those firms may well have been a protectable trade secret in the early years of Sasqua’s existence when greater time, energy and resources may have been necessary to acquire the level of detailed information to build and retain the business relationships at issue here. However, for good or bad, the exponential proliferation of information made available through full-blown use of the Internet and the powerful tools it provides to access such information in 2010 is a very different story.

The end result was that Uncle Chris’ database of client contact information was not protected as trade secrets and he lost his case. It seems that courts may be buying the argument that Niece Lori argued at trial that the time that people wanted their resumes and business contact information held confidential by headhunters, now those same clients want that information out there so they can get connected to others:

[i]t used to be years ago, that people were very protective about their resumes and personal information because no one ever wanted their employer to get wind that they were looking for another job. But in a post-Lehman bankruptcy world when everyone thought that the whole financial markets were going to the birds, and everyone was panicked about their jobs, the culture changed absolutely overnight to one  here people were protective of their information to one where almost everyone . . . puts it out there for the world to see because people want to be connected now. People want to know – – people want the recruiters knowing who they are and how to find your information and how to find them if they have a good opportunity. It has completely shifted. (pg 25)

It has completely shifted indeed!

The Uhms enrolled in a Medicare Part D prescription drug benefit through Humana Health Plans, Inc. They enrolled, Humana took their $6.90 for two months, but apparently forgot to actually enroll them in the plan. So after weeks of trying to get Humana to make things right, the Uhms did what any red-blooded American wants to do when they are screwed over… made a Federal Case out of it and took Humana to court in the Western District of Washington. The federal court did what they do to most red-blooded Americans that take big drug companies to court… they dismissed the claim and told the Ohms (who by this time were enrolled) that they had an Administrative process for this type of action and they need to exhaust that before making a federal case out of it. The Uhms then did what a true red-blooded American should do and followed the court’s ruling and went through the administrative process….  Just kidding… they appealed, of course!

Skip ahead two and a half years and the Ninth Circuit Court of Appeals confirmed the lower court’s ruling. Circuit Judge Richard A. Paez lays out a “painstakingly” detailed opinion of why the Uhms don’t have standing in the federal courts. Although Judge Paez’s 9,000 word, 70 paragraph, twenty-page decision (along with 26 footnotes) could be a chapter in a first year Civil Procedure class, it is Judge Betty B. Fletcher’s short three-paragraph concurrence that should be the one taught to lawyers. It seems that Judge Fletcher asks a basic question of the Uhms and their counsel: “What have Uhms’ counsel accomplished for the Uhms, for justice, or for the law?”  Here’s the entire concurring opinion from Judge Fletcher:

B. FLETCHER, Circuit Judge, concurring.

I concur in the opinion, which carefully and painstakingly analyzes the claims. I add this concurrence simply to vent my frustration. What have Uhms’ counsel accomplished for the Uhms, for justice, or for the law?

The Uhms suffered a frustrating and bureaucratic “snafu” that temporarily cost them two months’ prescription costs. They filled out the forms to receive Part D prescription drug benefits from Humana. The process obviously enrolled them to the point where automatic deductions were made from their social security checks. But the other half of the process failed — their status as beneficiaries was denied and, as a consequence, the Uhms had to pay for their prescriptions. Frustrating indeed. But what to do? Make a federal case of it — start a class action where simply following the administrative appeal process would suffice? A class action all for the recovery of two months’ prescriptions?

Today the Uhms receive the prescription drug benefits to which they are entitled. But not as a result of this lawsuit. The cost to the court system and to the Uhms is unconscionable. A bit of common sense and attention to the available administrative remedies should have been applied. Instead we have an opinion with endless pages of legal analysis, months of study and delay, and a determination that no benefit can be awarded to the Uhms. Counsel particularly should take heed.

I’ve suddenly become a big fan of Judge Fletcher.

[NOTE: Big thanks to Washington DC Attorney @maggieesq for tweeting me about this case. Thanks Maggie!!]