Monday, March 2, 2015

For Wednesday-Section C

Monday audio--Part I, Part II.

We will complete Discovery, with some final points on Bottler v. Coca-Cola. How can Coke get appellate review of the district court decision? Could Coke comply, then appeal from final judgment?

We then move on to Summary Judgment, the process for which discovery is most immediately important. Think about the concepts of "Burden of Persuasion" and "Burden of Production." What does the text of FRCP 56 mean? What does the rule mean by "genuine dispute," "material fact," and "judgment as a matter of law." What is different about summary judgment compared with 12(b)(6)/12(c)? What is an affidavit and how is it used on summary judgment? In reading Prof. Shapiro's Story of Celotex, pay close attention to his discussion of Adickes, SCOTUS' major summary judgment decision prior to the 1986 trilogy. Be sure to look at FRCP 50 compared with 56 and the connection between them (as discussed in Celotex).

Chemerinsky Lecture

If you walk into the Courtroom tomorrow through the Atrium, my secretary will be there with a roster. Please sign-in with her.
Google was able to protect its "valuable commercial secret" from discovery.

District Court Compels Disclosure of YouTube User Logging Records, Protects Source CodeBy Jay Gill — Edited by Sarah Sorscher
Viacom International, Inc. v. YouTube, Inc.
S.D.N.Y., July 1, 2008, No. 07 Civ. 2103
Order (Provided by Justia)
The District Court for the Southern District of New York partially granted a discovery motion made by Viacom in its copyright suit against YouTube and YouTube’s parent company Google. The order compels Google to produce the contents of YouTube’s logging database, including the login IDs, IP addresses, and viewing information of YouTube users. The court denied Viacom’s motion to compel production of the protected source code for the Google search engine.
Viacom’s complaint alleges that YouTube is directly or vicariously liable for duplication of copyrighted material on youtube.com, and seeks damages of over $1 billion and injunctions against further infringing conduct.
Wendy Seltzer at the Citizen Media Law Project summarizes the bifurcated outcome of the case: “trade secret wins; privacy loses.” Kurt Opsahl of the Electronic Frontier Foundation calls this a “setback to privacy rights,” and argues that some of the login names and IP address information, which the court states are anonymous, can in fact be used to identify individual users.

The most contentious portion of the 25-page opinion from Judge Louis Stanton concerns YouTube’s logging database. Each time a video is watched on youtube.com, this database records the YouTube account name of the viewer (if he or she has one), the IP address of the viewer’s computer, an identifier for the video, and the time.
Judge Stanton granted Viacom’s request for the entire contents of the logging database, which Viacom claims will reveal whether copyrighted materials are more heavily watched than amateur content. Judge Stanton discounted Google’s argument that disclosure of this information violates users’ privacy, citing Google’s own Public Policy Blog, which has stated that IP addresses cannot be used to identify individual users without more information. He also rejected YouTube’s argument that the information was protected by the 1988 Video Privacy Protection Act (18 U.S.C. § 2710).
Viacom was also successful in its request for copies of all videos that have ever been removed from youtube.com for any reason. Judge Stanton ruled that this discovery is necessary for Viacom to identify infringing videos among the removed material, and that the logistical difficulties in transferring this enormous quantity of data are not prohibitive.
Yet the ruling stated that the Electronic Communications Privacy Act (“ECPA”) 18 U.S.C. § 2510 et seq., does prevent YouTube from disclosing any videos users had labeled “private.” The court protected the videos themselves but granted the motion to compel disclosure of non-content information, such as usage history. Viacom hopes to use this information to test its argument that videos designated as “private” are nevertheless shared with numerous members of the public. Such videos would lose their protected status under Viacom’s interpretation of the ECPA.
The court accepted Google’s argument that the release of its source code, which is a valuable commercial secret, would be devastating to Google’s business. It held that Viacom would need to make a “plausible showing” to demonstrate that Google’s search code was intentionally designed to facilitate the viewing of infringing content. Stanton similarly denied discovery of the source code for of YouTube’s new “Video ID” program, with which copyright owners can search for infringing materials on youtube.com by providing sample clips for reference.
Viacom has stated that it does not intend to use the logging database information to sue individual users for copyright infringement and has issued a statement that it will allow YouTube to strip personally identifiable information from its records before disclosure.
Ellen Nakashima at the Washington Post points out that even if Viacom has promised not to use the data to pursue lawsuits against individuals, the ruling may still pave the way for others to do so.

For Wednesday-Section A

Monday audio.

We will continue (and hopefully finish) Discovery.

What is the process for seeking and responding to discovery? Again, review the sample discovery documents, for illustrative purposes. What might be the grounds for objecting to a discovery request? When does/should the court get involved? How do the parties get the court involved? How can a court protect a party from discovery? When will a court sanction a party?

We will discuss the following hypo as a review of Discovery:

Coca-Cola Bottler ("Bottler") is an independent bottler, working under a contract with Coca-Cola Co. ("Coke") Under the contract, Bottler is entitled to purchase the syrup for "Coca Cola" at a certain price. Coke sells the syrup for "Diet Coke" to Bottler at a higher price, insisting it is not "Coca Cola" and thus not subject to the lower contract price. Bottler sues Coke for breach of contract, seeking to recover the difference between what Coke charged and what it says it was entitled to pay under the contract. During discovery, Bottler requests that Coke produce the formula for Coca Cola, at the time the most closely guarded business secret in the world (note: This is not the same as being "privileged").
   • Is the formula discoverable? Be ready to argue for both sides.
   • If the court decides it is discoverable, what legal and strategic choices does Coke have?
   • If Coke does not produce, what might/should the court do? What choices does Coke now have?

Saturday, February 28, 2015

Sample discovery documents

Just to serve as examples of what these requests look and sound like: Interrogatories, Interrogatories, Document Production Requests. See also the record accompanying your LSV problem this semester. And for a taste of what a (wild) deposition might sound like, here is the transcript of the deposition by singer Robin Thicke in a copyright infringement suit.

Friday, February 27, 2015

For Monday-Section A

Technical difficulties with the recorder today, so no audio. Sorry. There is audio from Section C Miyagi Day here.

We will continue with Discovery Process and move on to Enforcing and Avoiding Discovery Obligations. Compare the current  FRCP 26(b)(1) and the proposed change (on the chart from the Blog); consider what will change and the effects of the changes. What should the court look for in the proportionality inquiry? Why make proportionality part of the question of what is discoverable?

Think about the process for seeking and obtaining discovery (after disclosures); what does the requesting party do and what can/may the producing party do? When does the court get involved and how (look at Seattle Times to see how it plays out). What if discovery is sought from a non-party?

Miyagi Day Section A



















Thursday, February 26, 2015

Immigration Reform - Complaint against POTUS

Having watched the President last night at FIU, I thought it interesting to check out the lawsuit  he was talking about. Here is the complaint. We have been talking about naming defendants or failing to name them when filing a complaint or amended complaint. In this case the main defendant is "The United States" as well as several other named federal officials:

https://www.texasattorneygeneral.gov/files/epress/files/20141203ImmigrationExecutiveOrderLawsuit.pdf

Wednesday, February 25, 2015



For Monday-Section C

Miyagi Audio.

We will continue with Discovery; move on to Enforcing and Avoiding Discovery Obligations. What is the process for seeking and responding to discovery? When does/should the court get involved? How do the parties get the court involved? How can a court protect a party from discovery? When will a court sanction a party?

Be ready to discuss the following.

Coca-Cola Bottler ("Bottler") is an independent bottler, working under a contract with Coca-Cola Co. ("Coke") Under the contract, Bottler is entitled to purchase the syrup for "Coca Cola" at a certain price. Coke sells the syrup for "Diet Coke" to Bottler at a higher price, insisting it is not "Coca Cola" and thus not subject to the lower contract price. Bottler sues Coke for breach of contract, seeking to recover the difference between what Coke charged and what it says it was entitled to pay under the contract. During discovery, Bottler requests that Coke produce the formula for Coca Cola, at the time the most closely guarded business secret in the world (note: This is not the same as being "privileged").
   • Is the formula discoverable? Be ready to argue for both sides.
   • If the court decides it is discoverable, what choices does Coke have?
   • If Coke does not produce, what might/should the court do? What choices does Coke now have?

For Friday-Section A

Wednesday audio.

Again, Miyagi Day will take about 75 minutes (10-11:15/11:20); we'll then take a break and come back for the remainder of the second session. Come armed with questions about Pleading; this will be the point at which (hopefully) the pieces come together.

In the second class, we will continue with Introduction to Discovery and Discovery Devices. Note the standards for discoverability as they currently read and under the pending amendment--what is changing about the standard in FRCP 26(b)(1) and what effect will that have? How do the various discovery devices work, what can you get through them, and in what order might you want to use them? Also, what is it that obligates a party to participate in discovery in a case? What about a non-party?

By the way, Essay # 5 will not be assigned until after Spring Break, so no one will be doing any writing over break.

Tuesday, February 24, 2015

Why Miyagi Day


Essay # 4: Amendments


Essay # 4 is after the jump. For Section A, it is due at the beginning of class on Friday, March 6. For Section C, it should be emailed to Veronica Torres at vstorres@fiu.edu by 7 p.m. on Friday, March 6.

Monday, February 23, 2015

For Wednesday-Section C

Monday audio-Hour I, Hour II.

No new reading for Wednesday, although review what we did for today. Miyagi Day will take about 75 minutes; we'll then break and go for the next 20-ish minutes on Discovery. We will pick up with Schlagenhauf and when physical/mental exams will be allowed and how to place the condition "genuinely in controversy." Where does a party's obligation to comply with discovery requests come from? What about a non-party who has relevant information?

Essay # 4 will be posted by noon tomorrow.

Intervention illustrated

We only spent a few class minutes on intervention under FRCP 24. Mostly I just want you to know that the procedure exists and when it might come up, even if it is not a real focus for us. But here are a couple of recent examples of intervention in action, purely for illustration.

The first comes from Alabama, where the challenge to the state's marriage-equality ban has spawned an amazing procedural morass (take Federal Courts in the next two years and you will come to understand all of it). There is a pending injunction requiring one probate judge, in Mobile, to issue licenses to same-sex couples. A probate judge in Jefferson County moved to intervene as a defendant in the action, primarily to protect himself against potentially conflicting obligations; the district court denied King's motion, concluding that there was no basis for him to intervene, since the plaintiffs all reside in Mobile and none would be seeking a license from King. It's a bit cursory, but you can see the analysis the court does under FRCP 24.

Second, consider an example of intervention outside of constitutional litigation. A sues X for injuries suffered while in X's store. I is X's insurer. Pursuant to their agreement, I will pay for X's defense and indemnify X for any judgment, although the agreement does not cover certain misconduct and I believes that it is not obligated to pay in this case. So I sues X, asking the court to declare (based on the contract) that I has no obligation to defend or indemnify. Now, X obviously wants I to be obligated to defend and indemnify; otherwise, X is on the hook to pay it himself. But A also has a separate interest in I being obligated to pay, because X may not have sufficient funds to pay any judgment; A needs I to pay to ensure himself of full recovery. So A likely will be allowed to intervene as a defendant in I v. X, in order to assert and defend its interests in having I be obligated to pay.

For Wednesday-Section A

Monday audio.

We will have some final words on Amendments/Relation Back. Please review FRCP 15(c) and your notes from today and try to fit the rule's text together with Krupski and our discussion; I will answer questions about the whole rule right at the beginning of class. Two things to consider: 1) How does Krupski strike the balance between notice and mistake? 2) What does the Court do with Costa's argument that the plaintiff waited too long before moving to amend? What role does delay play here?

We then move to Discovery. Read Managerial Judging, Introduction to Discovery, and Discovery Devices. Be sure to compare the current rules with the pending amendments (chart on the Blog). How can you reconcile broad discovery, especially initial disclosures, with an adversary system? What role does adversariness play in discovery?  Look at the rules for each discovery device; think about the order in which to use different devices and how each party (the party seeking discovery and the party from whom it is sought) proceed under each. What is discoverable and why? What must be disclosed initially and why?

Friday is our double session and Miyagi Day, which will run from 10-11:20 or so; we'll take a break and come back for the remaining hour.