Featured Articles


Technology Companies Gain High-Speed Access to Washington D.C. by Spending Millions on Lobbying

In the past, the technology industry largely steered clear of the nation’s capital.  Recently, however, the political playing field has grown to include some of the biggest, well-known Silicon Valley technology companies—and they are willing and able to pay the price to protect their interests on both the federal and state level. Sean Parker, one of the founders of Napster has said, “I think we’re starting to come into a realization of our own power and of our own capability, not just as innovators and technology pioneers, but also in a political sense.”  Norimitsu Onishi, Tech Industry Flexes Muscle in California Race, The New York Times (Feb. 5, 2014). 

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Insurers Not Obligated to Defend in ZIP Code Coverage Suits

Insurers are increasingly faced with privacy and data-breach related claims. One of the most common issues involves retailers’ collections of customer ZIP codes allegedly in violation of statutory or common law privacy laws. When an insured retailer is sued, must its insurer provide a defense under the “personal and advertising injury” policy section?  Given the frequency with which such claims are being made, how to respond to these claims is an important issue for insurers.

A Pennsylvania federal court recently analyzed whether OneBeacon America Insurance Company (OneBeacon) and The Hanover Insurance Group (Hanover) were obligated to defend retailers Urban Outfitters, Inc. and its subsidiary Anthropologie, Inc. (collectively Urban Outfitters) in three putative class action lawsuits challenging Urban Outfitters’ collection of customer ZIP codes. OneBeacon America Ins. Co. v. Urban Outfitters, Inc., et al., case number 2:13-cv-05269 (E.D. Penn., May 15, 2014). Applying Pennsylvania law, the court held that neither insurer had a duty to defend Urban Outfitters in any of the three class action lawsuits.

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Get Ready for Canada’s New Anti-Spam Legislation!

In December 2010, the Canadian government passed Canada’s Anti-Spam Legislation (CASL), which creates substantial restrictions on the use of electronic messaging for commercial purposes.  Three years later, on December 4, 2013, Industry Canada published the final regulations under CASL and announced that the majority of the CASL, with a few exceptions, will begin to take effect on July 1, 2014. With anti-spam provisions that apply to electronic messages sent or accessed by computer systems located in Canada, CASL and its accompanying Electronic Commerce Protection regulations and guidelines will have far-reaching effects, including on the electronic communications and marketing practices of foreign companies operating, or promoting their products and services, in the Canadian marketplace.

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Google Glass: How Will It Affect the Law as We Know It? In April 2012, Google introduced its Google Glass project, which takes the functionality of a smartphone to a new level. Glass is a wearable device that resembles a pair of eyeglasses and allows you to connect to the Internet with built-in monitor, camera, and microphone. The cutting-edge technology is able to record, save, and upload anything the Glass wearer can see or hear. It also allows Internet access with the flick of an eye. The device is not yet generally available to the public, though it is rumored to be available for purchase later this year. However, individuals called “Explorers” are testing Google Glass by wearing it.  Unsurprisingly, the device has already drawn questions by some regarding privacy and other issues.

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Optimizing Trial Technology and Tools

Even the most experienced trial attorney can be intimidated by the use of technology at trial.  The litigation world has come a long way.  In less than 15 years, we have gone from distributing paper copies of exhibits to jurors—even in complex commercial trials—to having a variety of technological options available.  And not just for displaying exhibits, but for scientific demonstrations, opening/closing aids, and showing live testimony from remote locations.  To be competitive, trial lawyers need to know what the technological options are, how to use them, and how to do so effectively.

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The Pitfalls of “Replying to All”

During those incredibly busy days all lawyers face, it is important to be mindful of the recipients of any electronic communication. There may be nothing more perilous than the “Reply to All” function on one’s email service; so dangerous is the function that the Wall Street Journal has called it “the button everyone loves to hate.”

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FDA Bows to Industry in Final Guidance on Regulation of Mobile Medical Apps Mobile medical applications (mobile medical apps or MMAs) are software programs that run on smartphones, tablet computers and other mobile communications devices. In July 2011, the Food and Drug Administration (FDA) issued a draft guidance document, titledMobile Medical Applications, describing FDA’s intention to bring mobile medical applications within its regulatory reach. On September 25, 2013, the FDA unveiled the highly anticipated final guidance on how it will regulate the up and coming field of mobile medical apps.

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ABA Amends Model Rules of Professional Conduct to Address Changes Brought by Technology and Globalization

It is undeniable that technology and globalization are changing the way lawyers practice law.  Technology has not just made people, places, and things much more accessible to us – it has impacted the way we store information and documents, the way we communicate with and advise clients, how we conduct investigations, and how we participate in discovery.  Likewise, globalization has brought with it an increasing number of legal issues that cross jurisdictional lines, and, as a result, more lawyers need to cross those lines in order to solve them.  In addition, economic forces have resulted in both newer and more experienced lawyers relocating or seeking employment outside the jurisdiction in which they were originally licensed. 

The American Bar Association (ABA) is cognizant of these changes.  In August, 2012 and February, 2013 – after a three-year study of how technology and globalization are transforming the practice of law – the ABA amended the Model Rules of Professional Conduct (Model Rules) to address the regulation of lawyers in light of these twenty-first century realities.  This article contains a summary of the most substantive changes adopted.[1]

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Adverse Event? There’s an FDA App for That!

This spring, the FDA rolled out its much-anticipated MedWatcher mobile application.  The application allows users to report adverse events, comb the Agency's existing adverse event report (AER) database, and receive alerts about specific drugs or devices.  Those who want to report adverse events are prompted to create a confidential profile—which includes the user's gender and age, but no identifying information—and provide the name of the purportedly offending product, the diagnosis for which the product was prescribed, and details about the adverse experience.  Users can even upload photos of their drug, device or adverse event(s) from their mobile phone and submit them along with their AERs.  

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Call Me Maybe . . . Or Maybe Not – Differing Judicial Opinions About What Constitutes Revocation Of

The Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA), is a federal statute originally enacted to address concerns relating to telemarketing/solicitation practices. Most litigation these days revolves around the Act's prohibition of: (1) certain types of communications to cell phones without prior express consent of the called party; and (2) the sending of unsolicited fax advertisements unless certain statutory exceptions apply.

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The Malicious Text

It is the day two young people have been looking forward to all year. Rachel Berry and Finn Hudson are getting married. Their friends and family have gathered and the excitement is building. They are just waiting on one more person to arrive – Rachel's good friend, Quinn Fabray. Quinn is running late, but in her excitement and haste needed to let Rachel know she was on her way. She grabs her cell phone and sends her a text message. At that moment a vehicle slams into the side of Quinn's car, abruptly ending an otherwise typical episode of Glee.

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Surveillance in the Twenty-first Century

Covert surveillance of personal injury claimants has undergone revolutionary changes since the days of VHS videotape. Now, more than ever, defense attorneys and claims professionals must be aware of the latest technology, methodology, social implications, and legal consequences of surveillance. From the reduced size and increased power and quality of cameras to the ability to transmit images and video instantaneously to remote locations, today’s technology provides a higher quality end product and more control over the surveillance process than ever before. That increased level of control brings the increased responsibility of ensuring that surveillance is ethical, efficient, and productive.

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A Roundup of Technology Trends for Attorneys Attorneys and other legal professionals continue to prefer iPhones and Android phones over the once popular BlackBerry. According to the American Bar Association's 2012 Legal Technology Survey Report, the percentage of smartphone-using lawyers favoring iPhones grew to 49 percent this year—up from 35 percent in 2011. ABA 2012 Legal Technology Survey Report 2012 (August 2012). view more
Ethics 20/20: The Impact of Technology Everyday, we see the impact of technology on the practice of law. Blogs, social networking, electronically stored information, and other legal resources create enormous economies and unprecedented depth in our field. But with these advantages come often unrecognized perils. The transparency and mobility of electronic information creates significant risks to client, unless properly controlled. view more
How to Be Ready for the Next Disaster Like it or not, we all depend on technology, and it takes a storm like Hurricane Sandy to reveal our technological weaknesses. I have been talking with friends and clients at many Northeastern law firms about how they weathered the storm and how their firms coped. Here’s what I learned. view more
There’s an App for That? Using Technology to Prepare and Defend Your Case Attorneys spend their days accumulating paper in client meetings and court appearances. With the iPad and iPhone, attorneys can leave behind pads of paper and carry a device smaller than the size of a day planner to take notes, mark-up documents, and make presentations. These devices are more than just Angry Birds and Kindle books—they are business devices that help you stay organized and better serve clients. Attorneys carry iPads to gather notes, stay organized, and research case law while in meetings with witnesses or to assist with conducting trials. With everything synced via the cloud to a desktop, it is easy to work on cases from court or at the office. view more
Ethics 20/20: The Impact of Technology Every day, we see the impact of technology on the practice of law. Blogs, social networking, electronically stored information, and other legal resources create enormous economies and unprecedented depth in our field. But with these advantages come unrecognized perils. The transparency and mobility of electronic information creates significant risks to clients, unless properly controlled. As part of the project to rein in technology in the practice of law, the American Bar Association launched an ambitious multi-year project called Ethics 20/20. One of the major goals of Ethics 20/20 was to modernize the rules of ethics and bring them into congruence with the state of technology. view more
Your Client’s Been Sued for Downloading Porn: The Ongoing Struggle Between Technology and the Law Your client comes in to your office and asks for a private meeting. He’s visibly embarrassed. You’ve known this client a long time and you’re surprised that he’s tentative about talking to you. Blushing, he hands you a letter he received from his cable company regarding his Internet usage. And suddenly you’re introduced to a new form of copyright infringement litigation. view more
Mobile Medical App? There’s a Reg for That Mobile medical applications (mobile medical apps or MMAs) are software programs that run on smartphones, tablet computers and other mobile communications devices. Last July, the Food and Drug Administration (FDA) issued a new draft guidance document, titled Mobile Medical Applications, describing the FDA’s intention to bring mobile medical applications within its regulatory reach. view more
Federal Ban on Hand-Held Mobile Telephone Use: Implications for Commercial Motor Vehicles FMCSA’s New Rule

The Department of Transportation (DOT), focused the federal government’s attention on distracted driving in September 2009, at the first National Distracted Driving Summit hosted by U.S. Transportation Secretary Ray LaHood in Washington, D.C. Shortly thereafter, President Obama signed Executive Order 13513, prohibiting federal employees from texting while driving government vehicles. Secretary LaHood issued new federal guidelines banning commercial bus and truck drivers from texting while driving, and Department of Labor Secretary Hilda Solis announced that the Occupational Safety and Health Administration (OSHA) will partner with the DOT on a new initiative combating work-related distracted driving. As a result of these initiatives, on December 2, 2011, the Federal Motor Carrier Safety Administration (FMCSA or the Agency) published in the Federal Register a new ban on the use of hand-held mobile telephones, which took effect January 3, 2012.
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Litigation Alert: Cell Phones as Carcinogens

There are more than 303 million cell phone subscribers in the United States. Globally, the number of cell phone subscribers is approximately five billion. Thus, a finding that cell phone use causes brain cancer or other harmful health effects would open the proverbial floodgates to claims against members of the cell phone industry and have huge ramifications for insurance companies. Not surprisingly, various parties all over the world are taking precautionary steps in light of the ongoing scientific inquiry. For example, the government of Delhi, India, recently announced a plan to require manufacturers to prominently display the level of radiation emitted by their handsets. And there is a movement gaining traction in the U.S. in Georgia that would prevent cell phone towers from being located close to schools. This article discusses the electromagnetic radiation emitted from cell phones, research regarding the relationship between cell phone electromagnetic radiation and cancer, and litigation regarding cell phone safety.

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How to Scale the Tower of Babble Technology has brought forth a revolutionary transformation in the way we communicate with each other. Unfortunately, like the epochal story of the Tower of Babel, where sudden changes in man's ability to communicate created havoc, it could be argued that new-age technologies have created similar results. As we are faced with increasingly diverse methods of communication, it becomes imperative to understand the impacts and implications of these new technologies on the world of communication, especially within the framework of the legal profession.  view more
Could IBM's Watson Make Experts Obsolete?

For those of you who have never heard of IBM's new supercomputer Watson, it is an artificial intelligence computer system designed to answer questions posed in natural language.  While many search engines such as Google and Yahoo can point you to articles that may contain the answer to your question, Watson goes one step further by processing the information it finds and providing you with an actual answer.

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ERROR 404: Jurisdiction Not Found: Why Personal Jurisdiction in Internet Cases Is Still Far from Predictable When Internet-based clients ask “Where am I subject to suit?” the answer for many is hardly clear. For nearly 20 years, judges and the legal community have struggled to analyze electronic contacts in the context of personal jurisdiction. A review of cases in the past few years only demonstrates that courts around the country are no closer to a uniform answer.  view more
Increasing Use of the Computer Fraud and Abuse Act in Business Disputes Increasingly in business disputes, often involving departing employees with proprietary information, businesses are adding Computer Fraud and Abuse Act ("CFAA") claims to their list of claims asserted because CFAA provides a vehicle for getting such suits into federal court without satisfying diversity jurisdiction requirements.  But, there is a split among the circuits as to the applicability of CFAA in business disputes.  view more
Information Security: Evolving “Reasonable” Security Standards 2011 has been the year of cyber attacks and renewed public discussion of information security assessments: assessment of vulnerabilities, assessment of threats, assessment of successful cyber attacks. The breach of EMC Corp.'s RSA SecurID sophisticated two-factor authentication token, the attack on Booz Allen Hamilton's military e-mail account and log-in credentials and other breaches by Anonymous/AntiSec hackers, Sony and its PlayStation service member database and account information attack, Lockheed Martin and the attack on its VPN access system, among others, follow the Stuxnet worm events, reported attacks on unnamed energy companies, and continuing attacks on various US Government agencies. The absence of publicized cyber attacks on other enterprises should not lead to the conclusion that other industries or organizations and their networks are of little or no interest to information thieves or manipulators. On the contrary, businesses in general, including professional services and small or more specialized targets, are moving into the cyber attackers' cross-hairs.  view more
When Electronic Communications Can Jeopardize the Attorney-Client Privilege ABA’s Position on Electronic Communications and the Attorney-Client Privilege
Protecting attorney-client communications in the age of technology can be a difficult and daunting task. On August 4, 2011, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 11-459, which discusses the duty to protect the confidentiality of e-mail communications with clients. The advisory opinion pertains to ABA Model Rule 1.6 and the comments thereto, which require a lawyer to maintain confidential communications and act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons. Thus, it is incumbent upon the practitioner to be aware of scenarios where modern communication devices may result in an inadvertent disclosure, thereby compromising confidential attorney-client communications. It is fairly well settled that attorneys and their clients can communicate freely and securely through electronic means without having to take extreme measures in order to ensure that the communications are secure; however, “in the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.” ABA Formal Op. 11-459. Knowing when and under what circumstances the client may have a reasonable expectation of privacy in communications sent from an employer issued communication device is key to understanding when the privilege may be lost.

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The Time Traveling attorney - How To Be In Two Places At One Time

It's 8:15 a.m., Tuesday morning. You find yourself shifting uncomfortably on the hard wooden bench in the back of the courtroom, trying to find a comfortable position for your long wait. On your way in, you checked the docket. Your Motion hearing is 9th deep. Bummer. There goes your whole morning. Well, look on the bright side—at least you got a hearing. As hard as it was to get ready for, you hope it's worth it.

Being the diligent professional you are, you had taken huge chunks of your paper file home last night to get ready for the hearing. It took you about an hour of office time going through the volumes of paper pleadings, documents, letters, etc. to get your "take-home" file ready. As you dashed out of the office, trying to make it to at least part of your daughter's 6:00 softball game, you hoped you didn't leave anything behind. 

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The Importance of Litigation Holds: Zubulake and its Progeny Litigation holds continue to grow in importance in this electronic world and as more and more organizations go "paperless." A litigation hold is a suspension of an organization's document retention and destruction policies for documents that may be relevant to a lawsuit that has been filed or for litigation that may be reasonably anticipated. The purpose of a litigation hold is to ensure that relevant data is not destroyed and that employees are advised of document preservation requirements in the face of litigation. There is a clear need for individuals and organizations to establish and follow a clearly articulated litigation hold process in order to avoid the pitfalls associated with the destruction of evidence after litigation is instituted or reasonably anticipated.      view more
Foundations for Admissibility of ESI Getting electronically stored information (ESI) into evidence poses unique challenges that require a heightened level of attention. The admissibility of ESI largely depends on establishing its authenticity and clearing the hearsay bar. While paper records face many of the same impediments to admissibility, different issues arise and different techniques are needed to get ESI over admissibility hurdles. This brief paper outlines some of the issues and provides basic tips. view more
THE FUTURE IS NOW: Computer-powered case presentation may be a necessity to persuade today's juries In today's society, computer powered presentations and displays are seen everywhere one looks. With the world's reliance on the internet for information, it seems as if no data or news is disseminated anymore without some colorful and eye-catching computer graphics. In other words, the idea of a future world where information is provided primarily through the use of computers has arrived. view more
Popularity of Cloud Computing Demands Shift in Best Practices The introduction of cloud computing will likely revolutionize the information technology world and require a paradigm shift in electronic discovery.  Still developing, cloud computing’s definition is still in flux, as its offerings increase and as it gains a foothold in IT infrastructures.  The genesis of the term “cloud” is from the symbol used to depict the Internet, which is typically represented as a cloud.  It’s also been called “sky computing,” in that users can plug into isolated clouds of services run off of virtual servers.  From an organizational standpoint, cloud computing leverages a professionally managed pool of resources, including computing, storage and networking capabilities.  The types of services offered by cloud computing providers are diverse; they range from applications to storage services that are subscription or pay-per-use based and run over the Internet.  For example, thousands of users may access a single application, such as Google Apps (providing email, calendaring and word processing), through the Internet.  Because these services are not hosted off of the user’s own computers, they are in the Internet’s “cloud." view more
Trying a Case in Our Sound Bite World Today, more than 40 percent of all jury panels consist of Generation X—the 78.2 million Americans born between 1966 and 1976.  Generation X jurors want more data; however, they want it presented in a concise, technological way.  Generation X jurors want trial exhibits and information in sound bite form: 30-second clips and preferably on a television screen. Generation-Y jurors are our youngest jurors and were born after 1978.  Generation-Y jurors want even more evidence presented technologically than the technologically savvy Generation-X jurors. Effective Use of Pretrial Discovery and the Case Theme, Edward J. Walsh. view more

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